Opinion
(August Term, 1848.)
1. A testator devised the whole of his negroes to be divided as follows: one-seventh to C, one-seventh to B., one-seventh to S., one-seventh to E., one-seventh to R., one-seventh to M., and one-seventh to G. R., one of the legatees, who was a niece of the testator, died in his lifetime. By the 9th clause of the will the testator devised as follows: "My land and stock of all kinds, etc., to be sold at public sale, all my just debts to be paid out of the proceeds of the sale." He then gives out of the proceeds of the sale $50 to A., B., and C., each. The will then proceeds: "If any left afterwards from the proceeds of the sale, to be equally divided among all my devisees."
2. Held, first, that the share of the negroes bequeathed to R. lapsed by her death in the lifetime of the testator and did not go to her children whom she left surviving her.
3. Held, secondly, that the word "devisees," in the residuary clause, meant legatees.
4. Held, thirdly, that the legatees, as such, take no part of the lapsed legacy, but as to it and the other property not mentioned in the will, the testator died intestate.
5. Held, fourthly, that the undisposed personal property of the testator, as well the lapsed legacy as the money on hand, notes, accounts, etc., constitute the primary fund for paying the debts, and what money may remain after such purpose is answered is to be distributed among the next of kin of the testator.
6. Held, fifthly, that the portion of the lapsed legacy which arose from the sale of the land does not go to the next of kin, but to the heirs at law.
CAUSE removed from the Court of Equity of CATAWBA, at (174) Spring Term, 1848.
McCorkle and Guion for plaintiff.
Wheeler for defendants.
Matthew McCorkle died in 1844, and by his will, duly made and proved, directed the whole of his negroes to be valued and not sold, and to be divided as follows: one-seventh to Charles Beaty, one-seventh to Betsey Selina Little, the wife of George Little; one-seventh to Sarah W. Sherrill, wife of Theophilus Sherrill; one-seventh to Elizabeth B. Sherrill, wife of Elisha Sherrill; one-seventh part to Rebecca W. Milligan; one-seventh part to Martha Milligan, and one-seventh part to Gilbert A. Milligan. The above legacies are contained in the first eight clauses of the will. Clause 9 is as follows: "9. My land and stock of all kinds, household and kitchen furniture and farming tools, and all my corn, wheat, oats, and fodder, to be sold at public sale; all my just debts to be paid out of the proceeds of the sale." By clause 10 the testator directs that "After my just debts and funeral expenses are paid, if there be anything left from the proceeds of the property that is to be sold, I will that Caroline Loftin, Thomas Loftin, Frank Loftin, and Selina Loftin get $50 each." Clause 11 is as follows: "I give and bequeath to Jane Rebecca Robinson $50 out of the proceeds of the property to be sold. If any left afterwards from the proceeds of the sale, to be equally divided among all my devisees." The bill alleges that, over and above the property mentioned in the will, the testator died seized and possessed of a large estate, both real and personal, and that Betsey Selina (175) Little died before the testator, whereby the legacy to her lapsed and fell into the general estate. It further alleges that the plaintiff, together with the defendants Charles Beaty, Rebecca Milligan, Martha Milligan, are the next of kin and representatives, as such, of the testator, and entitled each to one-eleventh part of the whole of the personal property, and the money arising from the sale of the land directed to be sold, after paying all the debts of the testator, and also the legacy of Betsey Selina Little, and that more than ten years had elapsed since administration with the will annexed had been granted to the defendant Elisha Sherrill. The bill charges that as to the lapsed legacy, and all the property not mentioned in the will, the testator died intestate, and that it passes under the law to his next of kin.
The answers admit the facts set forth in the bill, as to the death of Matthew McCorkle, the making of his will, etc., but deny that the testator died intestate as to any portion of his estate. They admit the death of Betsey Selina Little before that of the testator, and that she was the niece of the testator, but aver that she left seven children, who are next of kin, and entitled to one-seventh part of the sales of the negroes directed to be sold by the first clause of the will, and the legacy to their mother did not lapse, but that, if it did, it passed under the residuary clause contained in the 11th item of the will, to the legatees in the will, under the word devisees. The bill prays an account, etc., and the cause is set for hearing on the bill and answers.
It is required of the Court to put a construction upon the will of Matthew McCorkle, and thereby ascertain whether the testator died intestate as to any part of his property, and what property passed under the residuary provision of clause 11 of the will, and to whom. By the first clause of the will the whole of the negroes of the deceased are directed to be valued and divided into seven parts, and one-seventh part is given to Betsey Selina Little, who died before the testator, leaving seven children. One question submitted to us is, what effect the death of the legatee, before the testator, has upon the gift. There can be no doubt upon it. The legacy lapsed, and if there be in the will a general residuary clause, it sinks into and passes under it. If there be no such residuary clause, it is undisposed of by the will. The testator dies intestate as to it. It passes to the next of kin. The case is not governed by sec. 15, ch. 122, Rev. Stat. That is confined to a bequest to the children or the child of the testator. Betsey Selina Little was his niece. The whole question as to the lapse of the legacy was decided in Johnson v. Johnson, 38 N.C. 426; Hester v. Hester, 37 N.C. 330. The children, then, of Betsey Selina Little take nothing under the will of Matthew McCorkle, or as next of kin. It is argued, in behalf of the legatees, that under the residuary provision of clause 11 of the will the one-seventh part of the negroes left to Betsey Selina Little passed to them under the term "devisees." The next of kin contend that the word as used is insensible, and passes nothing. We agree with the counsel for the plaintiff, that the word "devisees" in clause 11 is to read legatees. The word devise is properly applied to gifts of real property by will, but may be extended to embrace personal property to execute the intention of the testator. The leading rule in the construction of wills is to carry into execution the intention of the maker. He has a right to make such a disposition of his property as he pleases, provided it is not for a purpose forbidden by the law. In arriving at this intention, the whole will must be taken together, and one part may be used to explain another, without regard to their respective positions. In the will (177) we are considering there are no devises of land, either preceding or following section 11. By section 9 he directs that his land, together with some of his personal property, shall be sold for the payment of debts. This is not a devise of the land to any one, but a power given to the executor or his personal representative to sell. It is manifest, therefore, by the term, "all my devises," the testator must have meant his legatees — his donees. The word legacy properly means a disposition by will of personal property; yet, to carry out the intention of the testator as gathered from the will, it may be rendered devise, and legatee, devisee. Williams v. McComb, 38 N.C. 455; Tucker v. Tucker, 40 N.C. 84; Hardacre v. Nash, 5 Term, 716.
We are clearly of opinion that the word "devisees" means "legatees," as used by the testator McCorkle, and that the bequest is not void for uncertainty. But we do not agree that, under the residuary provision of clause 11, the lapsed legacy of Betsey Selina Little passed to the other legatees. It is not a general, but a special, residuary clause, and nothing was intended to pass under it but the residue of the money arising from the sale of the property directed to be sold after the payment of the debts. The words are precise and unequivocal as to this question: "If any left afterwards from the proceeds of the sale, to be equally divided," etc. Now, nothing is directed to be sold but the property mentioned in clause 9. It cannot, then, embrace the lapsed legacy. Bradley v. Jones, 37 N.C. 248; Dickens v. Cotton, 22 N.C. 272. On the part of the next of kin it is contended that, under the residuary clause, nothing passed to the legatees but that portion of the money raised by the sale of the property, set apart in clause 9, which remained after the payment of the debts, and that as to all the other property owned by Matthew McCorkle, he died intestate, and it goes to the next of kin. It is not (178) necessary to cite authorities to show that, as to the property owned by a testator at the time of his death, or the making of his will and not disposed of by it, he dies intestate, and the personalty is to be distributed among the next of kin. It is alleged in the bill and admitted in the answer that the testator had other property besides his negroes, and property enumerated in clause 9. No part of his omitted property passed by the will, and there is an intestacy as to it. It did not pass under clause 11; its terms excluded it. The language used by Mary Jones in her will is very similar to that used here. Bradley v. Jones, 37 N.C. 245. The words are, "all the balance of my estate that is not given to be sold," and it was contended by the residuary legatees that the money on hand was embraced in it. The Court ruled to the contrary, and say: "We think the testatrix could not have meant that her specie and bank notes should be exposed to sale." The case before us is a much stronger one. The testator has told us what property should be sold, and what residue he meant. Another question arises, as to the proper fund for the payment of the debts and pecuniary legacies of the testator. Notwithstanding the directions given by the testator, as to the payment of his debts, contained in clause 9, under the circumstances of this case the personal property unbequeathed is the fund first to be looked to, and the debts are to be paid out of it as far as it will go. In the administration of assets, the personal property is the fund first liable, and is therefore often called the "natural fund." And when there is a will, that portion of the personal estate which is not especially bequeathed or by plain implication exempted is first applied. 1 Mad. Ch., 473. Now, it is true that, in clause 9 the testator does direct that his land and other property there named shall be sold and out of the proceeds of the sale his debts shall be paid. This, however, is but a charge on the property (179) so directed to be sold. There is nothing in the will exempting the undisposed surplus from the burthen. Nor is there anything in the clause fixing it absolutely upon the fund pointed out in it. And unless there be either an exemption of the residue or the charge be fixed by plain words or as plain implication, on other property exclusively, the legal and natural order of paying the debts and pecuniary legacies is not to be departed from. White v. Green, 36 N.C. 49.
We are of opinion, then, that the legacies of the negroes in the will of Matthew McCorkle to Betsey Selina Little lapsed in consequence of her death before the testator, and nothing passed under it to her children. (2) That the legatees, as such, take no portion of the said lapsed legacy, but, as to it and the other property of the testator not mentioned in the will, Matthew McCorkle died intestate. (3) That in the residuary provision of clause 11 of the will the legatees are meant under the term devisees, but that they, as legatees, do not take any portion of the money on hand, or other personal property not disposed of in the will. (4) That the undisposed personal property of Matthew McCorkle, as well the lapsed legacy as the money on hand, notes and accounts, etc., constitute the primary fund for paying the debts, and what money may remain after such purpose is answered is to be distributed among the next of kin of the testator. (5) It appears from the will that a portion of the property directed to be sold was land, and we have declared that Betsey Selina Little, to whom, under the name of devisee, a portion of the proceeds are given, having died, her portion lapsed. But that portion of the proceeds of the land does not go to the testator's next of kin, but to his heirs at law.
PER CURIAM. Decree accordingly.
Cited: Lane v. Bennett, 56 N.C. 394.