Opinion
(June Term, 1828.)
A testator directed his lands to be sold and the proceeds divided among his "heirs not heretofore mentioned": Held, (1) That the land should be considered as money, and that the word "heirs" meant those who were entitled under the statute of distributions. (2) That the words "not heretofore mentioned" applied only to those taking beneficially under the will, and not to a legatee in trust.
From TYRRELL. This cause was heard in the court below, Martin, J., on the Fall Circuit of 1827, when the facts were that Charles Spruil duly made his will and appointed the defendant Benjamin, his brother, one of his executors. After several pecuniary legacies to his relations, and among them one to the defendant Benjamin in trust for a sister of his and the testator, he devised as follows:
Hogg for appellant.
Gaston and Badger, contra.
"My will and desire is that all my other estate, both real and personal, be sold at the discretion of my executors, and the money arising therefrom to be equally divided amongst my other heirs, not heretofore mentioned."
Two questions were submitted to his Honor, viz.:
1. Whether the fund created by the sale of the land belonging to the testator should be divided among his personal or real representatives, who were parties to the suit.
2. Whether the mention made of the defendant Benjamin, in the first part of the will, appointing him a trustee for his sister, prevented him from claiming any part of the residuum.
His Honor decreed that the proceeds of the land should be divided according to the statute of distributions, and that the defendant Benjamin was not entitled to any part of the residue.
From this decree the defendant Benjamin appealed to this (190) Court.
It it a well known rule of equity that land directed to be sold and turned into money shall be considered as money unless there is some plain intention to the contrary, and whether the direction is given by will or any other instrument makes no difference.
What description of persons is to be understood by the word heirs, as applied to personal property, has not been positively settled by any adjudication, though strong opinions have at times been expressed upon it. Thus in Holloway v. Holloway it is said that though the word heirs has a definite sense as applied to real estate, yet as to personal estate it must mean such persons as the law points out to succeed to personal property. If personal property were given to a man and his heirs, it would go to his executors. And this is the only construction we can give to it in this will, which will therefore confine the bequest to such as are entitled under the statute of distributions.
I do not think there is any sufficient reason for excluding Benjamin Spruil from this distribution. By excluding those who had been mentioned in the will, the testator must have meant those for whom some provision had been made; but none was made for Benjamin, who seems, besides, to have been an object of the testator's confidence, since he had appointed him executor, and trustee for his sister. In this (191) respect only the decree appealed from is incorrect.
PER CURIAM. Let the decree below be affirmed as to so much of it by which the mode of distribution is pointed out, and reversed as to the exclusion of Benjamin. Let the costs of the court below be paid out of the fund, and the costs of this Court by the plaintiffs.
Cited: Hackney v. Griffin, 59 N.C. 384; Everett v. Griffin, 174 N.C. 108.