Opinion
11-20-1818
Bolling v. Robertson and Wife
Wickham for the Appellant. Leigh, for the Appellees. Call on the same side.
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The late Col. Thomas Bolling, of Cobbs, died in the summer of the year 1804, having duly made and published his last Will and Testament, wherein he devised and bequeathed as follows:
" I give and devise unto my beloved wife Betty Bolling, during her natural life, all my lands and tenements in the county of Chesterfield, and the use of all my Negroes, stocks, household and kitchen furniture (except my black walnut desk and book case) and plantation utensils, that shall be living at or belonging to Cobbs, at the time of my death; and my will and desire is, that all my Negroes and stocks in the counties of Goochland and Powhatan, be, the December after my decease, equally divided between my said wife and my son William Bolling, to be kept together and worked on my estate known formerly by the name of Lickinghole, now Bolling Hall, and on my island called Bolling's Island, both lying and being in the county of Goochland, and on my plantation in Powhatan called Hampstead, and the profits thereof to be equally divided between my said wife and my son William Bolling; the wagon and team and driver, to be kept up for the use of the plantation and to transport necessaries to Cobbs, for my said wife, whenever she shall think proper to order it, but not to be considered as belonging to Cobbs." Another clause of his Will contains this provision--" I give and devise to my son William Bolling and his heirs, all my tract of land and plantation, known formerly by the name of Lickinghole, now called Bolling Hall, also my island and plantation called Hampstead, in the county of Powhatan, subject to the condition mentioned in the first clause of my Will, during the life of his mother. I also give and devise to my said son William and his heirs, all my lands in the county of Campbell, also two acres of land devised to me by my late father's Will, lying over the creek in the fork of Lickinghole and adjoining the said Bolling Hall Tract." After sundry small legacies to his other children, the testator adds--" All the rest and residue of my estate not already disposed of, I give and devise to my son William Bolling and his heirs; whom I constitute and appoint executor of this my last Will and Testament; and I desire that he may not be required to give security on the probate of this my Will, and that my estate be not appraised."
Mrs. Bolling died in November 1813, leaving a Will, by which, after a few pecuniary legacies, she bequeathed to her daughters Elizabeth Robertson and Rebecca Murray the residue of her estate, to be equally divided between them. William Bolling duly qualified according to law as her executor. The division of the slaves and stocks, as directed by the Will of Thomas Bolling, had not taken place during her life.
A Bill was filed in the Superior Court of Chancery for the Richmond District, by William Robertson and Elizabeth his wife and Rebecca Murray, against the said William Bolling in his individual character, as executor of Thomas Bolling, and also as executor of Betty Bolling; the complainants claiming, as her residuary legatees, a moiety of all the slaves and stocks which were of the said Thomas Bolling at the time of his death, together with the increase of the females, one half of the crops of the said lands in Goochland and Powhatan for the year 1813, together with the hires and profits of their moiety of the said slaves and stocks, until the same should be given up to them; and also an account of the profits of the joint estate during the life of the said Betty.
On the 2d of July 1818, Chancellor Taylor decreed, (with a slight variation mentioned in the note,) according to the prayer of the Bill; being of opinion that in so doing, he " rejected that construction of the Will of Thomas Bolling deceased which would render utterly useless, insensible and inoperative, that provision of the said Will which directs that all the testator's Negroes and stocks in the Counties of Goochland and Powhatan, should be, the December after his decease, equally divided between his wife Betty Bolling and his son William Bolling, and gave such a construction to the said Will as would render all it's parts sensible, consistent and operative." From this decree the defendant appealed.
Decree affirmed.
Wickham for the Appellant. Nothing but a life interest was given to Mrs. Bolling in the negroes. They were bequeathed for a particular object only. Whenever the trust is for a particular object, the estate is to be construed as commensurate with it, notwithstanding the words used by the testator would extend farther. She had the use only; not even the estate for life. Cujus est dare, ejus est disponere. William Bolling was to have a right to a moiety; but she took only a beneficiary interest for a certain purpose.
The testator did not mean an equal division of the slaves, but of their profits. Cui bono? Why should he direct a division of the slaves, when they were still to be kept together and worked on his estate? The words, " equally divided, the December after my decease," were intended only to point out the time when the wife's right to the moiety of the profits should commence. The time appointed for dividing the stock is the same. This shews that an actual division was not intended.
In construing a Will, words may be rejected, in order to give effect to the testator's intention. The words, " equally to be divided," have been held as giving only a tenantcy in common, not as requiring actual division.
Dae v. Appliny, 4 Term Rep. 82.
The clause concerning the waggon and team fortifies my construction of the Will. The testator could not intend that the waggon and team should be divided: it was a personal privilege to the Wife, to continue during her life only.
Upon a fi. fa. against Mrs. Bolling, the Sheriff could not have sold any of the negroes to be carried off the plantation. So, in the case of an execution against an individual partner, the partnership property can not be sold, in any other manner than subject to the right of the other partners.
The whole Will must be taken together; and, from the context, it appears, that no motive of conveniency or propriety could induce the testator to give his Wife an absolute estate in these negroes. His son was the principal object of his bounty. It is obvious he considered the negroes on the Goochland estate as not more than enough to cultivate it. Can it be doubted that, when he gave his son the land, he meant to give him the negroes also? No estate in remainder is given to the Wife, but all the rest and residue to the son. It is remarkable that, in all the devises to the Wife, he gives a life estate only; shewing his wish to keep the property together.
Leigh, for the Appellees. The testator, in the first clause of his will, gives his wife his landed estate in Chesterfield, called Cobbs, and the use of the slaves, stocks, & c. on that estate, during her natural life: thus evincing, that he well knew how to limit a life estate, when he intended one; that he knew the difference between giving the use of property, and giving the property itself; and that his attention was wide awake as to both those points. When, therefore, in the very next sentence, he directs, that his slaves, stocks, & c. in Goochland and Powhatan, shall be equally divided between his wife and his son William, without expressing what quantity or quality of estate either of them should take, can it be doubted, that he meant to give them both, an absolute estate in quantity and quality according to the legal import of the words? that, if he had intended to give his wife the life estate and the use only of this property, he would have so limited it in express terms?
Suppose this clause had stood alone; suppose there had been no residuary clause: would not the son have taken, by this clause, an absolute estate in his moiety? The same words must give the wife the same estate in her moiety.
If the testator had intended to give his wife a life estate only, in the moiety of the slaves, & c. in Goochland and Powhatan, why was he so particular in appointing the time when the division of that property should be made between the wife and the son? Why was a division directed at all? The will directs, that it shall be equally divided between them, the December after the testator's death. If the appellant's construction were correct; if a provision of the wife, for her life only, were here intended; no such division at any period would have been necessary. The direct, simple, obvious method of effecting the purpose attributed to the testator by the appellant, would have been, to give his wife, for her life, a moiety of the profits of the whole of those estates, lands, slaves, and all. It seems to me impossible to reconcile this very particular direction for a division, with an intention to give his wife only a life estate, and only the use of the property; a life interest in the profits of these slaves, & c., and not an absolute estate in a moiety of the slaves themselves.
In the principal devise to this favorite son, the testator gives him his Goochland and Powhatan lands, subject to the condition mentioned in the first clause of his will during the life of his mother; that is, to his mother's right to work her moiety of the slaves on those lands, and to receive a moiety of the profits of both lands and slaves. Here again, the same subject is brought to his mind; here again, we might expect a limitation of the interest he gave his wife, if such limitation was intended. But we find the interest given by the former clause to his wife, limited to a life estate with respect to the lands only, without any such limitation with respect to her interest in the slaves, & c. If it was intended, that the son should have all those slaves, & c. subject to the mother's life interest carved out of the son's absolute estate therein, why were not the slaves, & c. as well as the lands, given to the son, subject to his mother's life interest therein? The testator does here, in effect, explain the first clause of the will; referring to it, as giving his wife a mere life interest in the lands, but not as giving her a mere life interest in the slaves, & c.
It is argued, that the qualification, which limits the estate at Cobbs to the wife during her natural life, runs through the whole of that clause, and equally applies to and effects the estate given her in the Goochland and Powhatan slaves, & c. This is a point to be determined by simple inspection. It is not to be elucidated by argument. Such an interpretation violates, at once, all the grammatical and all the legal rules of construction.
It is thought highly improbable, nay impossible, that the testator should have intended to give his wife an absolute estate in any of his slaves or other personalty, and should have failed to give her such an estate in the family servants, household furniture, & c. at Cobbs, the place of his and her residence: he gives her only a life estate in this property: therefore, it is inferred, he could not have intended to give her more than a life estate in the Goochland and Powhatan slaves, & c. What were the testator's motives, it were as vain as it is needless to enquire. But it may be fairly supposed, that he had contracted a partiality for his family servants, his family pictures, his plate, even his furniture; and wished that property particularly to go to his favorite son, along with the family mansion, at his wife's death. It seems to me, indeed, more natural, that he should give his wife an absolute estate in the slaves on his distant estates in Goochland and Powhatan, than in the property at Cobbs.
If, as it is said, the wife took only a life interest in the waggon and team and driver, which are directed to be kept up, for the use of the plantation, and to transport necessaries to Cobbs, for the wife's use, when she might think necessary to order it; this can only operate, at most, as an exception of the waggon and team and driver from the general effect of the preceding bequest. But it is remarkable, that the testator was careful to add, that this waggon and team and driver should not be considered as belonging to Cobbs. Why? If he meant, that the wife should have the same estate in the moiety of the Goochland and Powhatan slaves, as he had given her in those at Cobbs; if only a life estate was intended to be given her in both sets of slaves; it was immaterial, whether the waggon and team and driver were to be considered as belonging to Cobbs or to Bolling-Hall. This careful discrimination, therefore, fortifies the construction of the will, for which the appellees contend.
Call on the same side. The testator's intention is to be collected from his words, or by necessary inference from them. Speculative suppositions of what he may have intended, are not to be resorted to. The words, " equally to be divided," can not be got over, there being no other words in the Will to do away their effect. Why did the testator direct a division of the slaves as well as of the profits, if he meant a division of the profits only? Take Mr. Wickham's construction, and the testator gave all to his son, and nothing to his daughters.
Wickham in reply. Discarding nice grammatical disquisitions, the intention of the testator is evident, to give his wife a limited estate for a particular purpose. We are confined to that purpose, and not authorised to go beyond it. The expression of one object is the exclusion of another. She had an estate for life in the Cobbs estate: she had a qualified interest, or use, only, for the same time in the Goochland estates. In hundreds of instances, the words, " equally to be divided," do not signify an actual division; for instance, where a single slave is bequeathed to be equally divided. The testator never meant an equal division in numero, but to appoint the time when the equal interest of his wife and son in moieties should commence. Why should he intend two divisions; --first, of the slaves, and afterwards, of the profits?
Words may be rejected, to give effect to a testator's intention: yet I do not contend for rejecting the words, " equally to be divided the December after my decease." Their meaning is, to express the right of the wife to an eequal interest, and to fix the time for it's commencement.
OPINION
By the Court, the Decree was affirmed.