(December Term, 1855.)
Where a testator, having a brother and sister his next kin, the brother having two daughters, and the sister three sons, devises in several preceding clauses, estates to the brother and to the sister, and to the children of each respectively, and gives to the brother and sister no other estate or interest in any part of the will, and concludes with a residuary clause as follows: "the rest and residue I wish to be equally divided between the children of my brother, J. S.C., and my sister, N. A. A." Held, that the words "the children of" are to be understood in the last sentence of the clause; that both families of children take per capita; and that N. A. A. takes no interest under that clause.
CAUSE removed from the Court of Equity of Beaufort Co.
Donnell for plaintiffs.
No counsel appeared for defendants in this Court.
This was a bill filed by Henry W. Adams, the Adm'r with the will annexed of John M. Coila, and as the husband of Nancy A. Adams, against the legatees under said will, praying the advice of the Court of Equity as to the construction and the proper manner of executing the provisions of the will. The following is a copy of the will: "Item 1. I lend unto my sister Nancy Amanda Adams, during her natural life, one improved lot in the town of Bath, N.C. known in plan of said town, as lot No. 31, and at her decease, I give the same to her son, William Adams, forever.
"Item 2. I lend to my sister Nancy Amanda Adams, during her natural life, one unimproved lot in the town of Bath, N.C. known in the plan of said town as lot No. 29, and at her decease I give the same to her son, William Adams, forever.
"Item 3. I lend to my sister Nancy Amanda Adams one tract or parcel of land lying on Chicod Creek, Pitt County, N.C. adjoining the lands of Nathaniel Harding, James Paramore and others, during her natural life, and at her decease I give the same to her lawful children forever.
"Item 4. I lend to my sister Nancy Amanda Adams one tract or parcel of land lying on Chicod Creek, Pitt County, N.C. adjoining the lands of Henry Galloway, John Boyd and others during her (216) natural life, and at her decease I give the same to her lawful children forever.
"Item 5. I lend to my brother Jahleel Smith Coila, one tract or parcel of land lying at the head of Duck Creek, Beaufort County, N.C. adjoining the lands of John Pilly, Sr., Robert Latham and others during his natural life, and at his decease I give the same to his lawful children forever.
"Item 6. I give to my nephew, William Adams, three hundred dollars, which sum I wish to be judiciously expended in his education.
"Item 7. The rest and residue that I may die possessed of, I wish to be equally divided between the children of my brother Jahleel Smith Coila, and my sister Nancy Amanda Adams."
The children of Mrs. Adams are John A. Adams, William A. Adams, and Henry E. Adams, who are infants, and are made parties to this bill, defending by their guardian ad litem.
The children of Jahleel Smith Coila are Ellen and Rosanna Coila, who are also infants, and are made parties defendant, defending by their guardian ad litem.
The questions propounded in said bill are:
1. Whether Nancy Amanda Adams takes anything under the seventh clause of the above will.
2. In case she is entitled, what proportion is she entitled to? Whether one half or one third?
The defendant, by their guardians, answered, professing no knowledge of the matter set out in the will and exhibit, but submitted their interests to the judgment of the Court.
The cause was set down for hearing on the bill, answer and exhibit, and removed to this Court by consent.
The bill is filed to procure a construction of the 7th section of John M. Coila's will. The will contains seven items. The first five are of the same character as to the interest devised. (217) The sixth is a pecuniary legacy, and the seventh disposes of the residue of the testator's estate. It is as follows: "The rest and residue that I may die possessed of, I wish to be equally divided between the children of my brother Jahleel Smith Coila, and my sister Nancy Amanda Adams." The difficulty is to ascertain who are the persons entitled to this residue. As to the children of Jahleel Smith Coila there is no doubt as to their right, and the only question for our decision is, is Mrs. Nancy Amanda Adams entitled to any interest in it? or are her children entitled to it? The leading rule in the construction of wills, is to ascertain the intention of the testator, which must govern, if not contrary to law; and to find this intention, the whole will must be examined, and it becomes often necessary to do so. If this rule be observed in this case, the intent of the testator is made plain. He had a brother, Jahleel Coila, and Mrs. Adams, his sister, to whom he devises land in the five first clauses of the will, and in each case gives to them but a life estate, the remainder being devised to their children. From some cause he does not give any of his real estate in fee to either his brother or his sister, and their children appear to be the great objects of his bounty. In the first and second clauses of the will, William Adams, the son of Nancy A. Adams, is the devisee in remainder; in the 3d and 4th all the lawful children of Mrs. Nancy A. Adams are the devises in remainder. In the 5th clause a similar disposition is made of the remainder of the land devised to the brother. Throughout these dispositions of the land property, devised to his brother and sister, it is obvious from some cause or other, it was not the intention of the testator to put it in their power to defeat his intentions as to their children. In the 7th clause, the one we are considering, the testator leaves no doubt as to the children of his brother; the brother is to have nothing of the residue; and though not equally clear as to Mrs. Adams, it is sufficiently so to show the intention that his sister should take nothing, but her children should take. Why there should be a (218) difference in this clause, while in every other there is a perfect equality in the nature of the interest devised to each of them, is not obvious. The plaintiff and his wife take nothing of the residue, but it is to be divided equally per capita between the children of the brother, J. S. Coila, and those of the sister, Mrs. Nancy Amanda Adams.
Cited: Howell v. Tyler, 91 N.C. 213; Bank v. Phillips, 235 N.C. 497.