Opinion
July Term, 1818.
From Nash.
A testator by the first clause of his will devised to his three daughters, each, a tract of land, and provided in the same clause that of either of them should die before marriage, the lands of such one should go to the survivors; and in case all should die before marriage, their lands were to go to B and C. After several other bequests and devises, the testator, in the last clause of his will, bequeaths to the same daughters a number of slaves, with other specified personal estate; and then adds a general clause of all the residue of his estate, real, personal and mixed, to be equally divided among them when the two eldest arrive at the age of eighteen years or marry; and that if either of them should die before their arrival at eighteen years or marriage, then the share of the one so dying should go to the survivors; but if they should all die before they arrive at eighteen years, or marry and have issue, then the said personal estate (particularly specifying it) and all other property which they were entitled to by his will should go to B, P, R and A. The lands mentioned in the first clause are not affected by anything contained in the last clause; and therefore upon the death of one of the daughters who reached eighteen years and married, but died without issue, the lands passed to her surviving sisters.
THIS was a case agreed, in which the material facts (322) are as follows: Micajah Thomas having three illegitimate children by Ann Jackson, to wit, Mourning, Margaret and Temperance, made his will in 1788, and therein devised "to his daughter Mourning all that part of his manor plantation, etc., containing 2,500 acres; also another tract, etc." And to his daughter Margaret other lands in fee simple; and to his daughter Temperance other lands in fee simple. He then declared that if "either of his said daughters should die before they marry, the lands of the deceased shall go to and be equally divided between the surviving two and their heirs forever; and in case two of them should die before they marry, then the whole of their lands shall go to the surviving one and her heirs forever; and in case that all three of them should die before they marry, that all the lands willed to them should go and be equally divided between Bennet Boddie, George Boddie, John Crudup and George Crudup, to them and their heirs forever."
The testator then gave several legacies to other persons, and, returning to his daughters, he declares, "that he gave to them his negro slaves, with their increase, his cash on hand, certificates, stock in trade, debts due by bond or otherwise, all and every thing else of his estate, real and personal or mixed, that is not before given in and by his will, to be equally divided (323) between them when they should arrive at the age of eighteen years, or marry, to them and the heirs of their bodies forever. But if either of the said children should die before they arrive at the age of eighteen years, or marry, then and in that case the estate of the one deceased should be equally divided between the surviving two, to them and the heirs of their bodies forever; and if two of them should die before they arrive at the age of eighteen years, or marry, then that the portions of the two deceased should descend to the surviving one, and the heirs of her body forever. But if all of them should die before they arrive at the age of eighteen years, or marry, and has issue thereby, then the said negroes, cash, etc., shall go to and be equally divided between Bennet Boddie, George Boddie, Temperance and Marry Perry, daughters of Nathan Boddie, Elizabeth Boddie, Mourning Boddie, and testator's two nieces, Rhoda Ricks, and Mourning Arrington, to them and their heirs forever."
Mourning, one of the testator's daughters, arrived at the age of eighteen, married, and died, without issue, in 1805. Her mother was named Ann Jackson, who after the death of the testator, Micajah Thomas, had four illegitimate children, named Munroe, who survived Mourning. She had also a daughter named Mary, wife of Joseph Arrington, one of the lessors of the plaintiff, born out of wedlock; and John Arrington, Martha, wife of Laurence Battle, and William Arrington (all lessors of the plaintiff), born in wedlock, who survived Mourning.
Margaret, one of the testator's daughters, married John Alston, and Temperance married James Alston. The case stated that John Alston was in possession of the lands in question, claiming them adversely to and denying the title of the lessors of the plaintiff.
It was submitted to this Court to decide who were entitled to the real estate acquired by Mourning, under the will of Micajah Thomas. If Margaret and Temperance were (324) entitled, them judgment to be entered for defendant; if all the brothers and sisters of Mourning, legitimate and illegitimate, were entitled, then judgment to be entered for the plaintiff on the demises of each of his lessors. If only the legitimate were entitled, then judgment for the plaintiff, on the demises of John Arrington, William Arrington and Laurence Battle and wife.
By the first clause of this will the testator devises to his daughters several tracts of land, and provides in the same clause that if either of them should die before marriage, the lands devised to such one so dying should go to the survivor; and in case they should all die before marriage, the lands so devised should go to the Boddies and Crudups. By the latter clause the testator devises to his same daughters a number of slaves, together with other specified personal estate, and then adds a general sweeping clause of all the rest and residue of his estate, both real, personal and mixed, to be equally divided amongst them when the two eldest arrive at the age of eighteen years or marry; and that if either of them should die before their arrival at eighteen years or marriage, then the share of the one so dying should go to the survivors; but if they should die before they arrive at eighteen years, or marry and have issue, then the said personal estate, particularly specifying it, and all other property which they were entitled to by his will, should go to the Boddies, the Perrys, the Rickses, and the Arringtons.
Mourning, one of the daughters, arrived at eighteen years and married, but died without issue; and the question is, Do the lands devised to her pass to the surviving sisters, or do they descend to her heirs at law? If the lands be not affected by the latter clause, it is clear they become vested; and upon looking into both clauses it appears plain that it was not intended by the testator that they should be subject to it in any manner. The first is a plain limitation to the Boddies (325) and Crudups, upon a default of the daughters arriving at eighteen years or marriage. The other clause respecting the personal estate is limited to a different set of persons, and not upon the same contingency that the lands were limited upon, but upon a default of their dying unmarried, under eighteen years of age, and without issue. So that it seems impossible to suppose he could have intended, consistently with all he had declared, to have made the lands subject to that clause; nor can we be brought to understand him so by anything short of downright and positive declarations; these he has not made; but he has used terms which comprehend them within their scope. He has said, "all the other property"; but as they do not otherwise than by construction embrace the lands, such construction must stand controlled by the other clause, whose peculiar office it was to dispose of them.
The case is, therefore, not like those where the same identical thing is devised to two different persons, by different clauses; there it is impossible to understand the testator, on account of the same thing being twice devised. Here a general term is used, and the testator's general intent is easily perceived. But if the lands were considered as subject to the second clause, a remainder to the surviving sisters was not to take place but upon a dying unmarried, under eighteen years of age and without issue; for the words of the will are, "if she should die under eighteen, or unmarried and without issue"; yet the copulation or must be understood and, otherwise a dying without issue, if under eighteen, would not prevent the estate from passing to the survivors; and surely it was the intention of the testator to provide for the issue, if we respect his declarations.
But it has already been decided in this Court, upon this will, and this very clause, that such construction should be (326) put upon the word or: Alston v. Branch, 5 N.C. 326; and the cases cited by the plaintiff's counsel are decisive in favor of this construction. 1 Wills., 140; 3 Term, 47; 4 Term, 441. It has, however, been insisted that though this should be the proper construction in relation to the personal estate, yet in respect of the real the same words may be construed differently; and Forth v. Chapman, 1 P. Wms., 668, is cited as an authority. This case has been fully answered on the other side by Richards v. Burgaveny, 2 Vernon, 324, which determines that whenever the real and personal estates are to go over together, there the same construction shall be applied to the words in relation to each. This case is noticed in 2 Fearne, 195, by way of note to Forth v. Chapman. Whichever way, therefore, the case is considered, there must be judgment for the heirs at law; and the act of Assembly of 1799 having made bastard brothers and sisters capable of inheriting from each other in like manner as if they were legitimate, there must be judgment for their lessees also.
Cited: Turner v. Whitted, 9 N.C. 619; Flintham v. Holder, 16 N.C. 349; McBryde v. Patterson, 78 N.C. 415; Powers v. Kile, 83 N.C. 157.