Opinion
(December Term, 1859.)
1. Where a testator gave slaves to a trustee, in trust for his daughter and her children, "free and exclusive of any control of her husband," she having children at the time, it was Held to manifest an intention to provide specially for the daughter, and that she consequently took an estate for life in the negroes, with a remainder to her children born or that might be born thereafter.
2. Where a testator had placed in the hands of a married daughter a female slave, who had two children afterwards, and before the death of the testator, and the donor, by his will, expressly confirms the gift of the negroes already received, and another clause in the same will required the whole estate, real and personal, to be divided after the manner of law and equity, it was Held to be the intention of the testator that the property should be valued as of the time of the original gift and the two children excluded from the valuation.
3. Where a will contained the following clause, "upon consultation, if Georgiana wishes to remain with her mother, provided it be possible, this house ought to be enlarged for her comfort, which I recommend, so as to make room for boarders," it was Held that such clause was too vague to be carried into effect.
CAUSE removed from the Court of Equity of WAKE.
Miller and Busbee for plaintiff.
No counsel for defendants.
The bill was filed by the administrator, with the will annexed of Dr. A. H. Taylor, for directions and advice as to his duty in carrying out the intentions of the testator in the several particulars stated in the pleadings. The clauses in the said will, and the facts applicable to the questions raised thereon, are so fully stated in the opinion of the Court that it is deemed unnecessary to repeat them here.
The bill is filed by the plaintiff as the administrator, with the will annexed, of Dr. Alexander H. Taylor for the purpose of getting the advice and direction of the Court as to the proper construction of certain clauses in the will of the testator.
1. The difficulty is presented in the clause which gives the share of his estate to which the testator's oldest daughter, Mrs. Spivey, (220) may be entitled to certain trustees, in trust "for the benefit of her and her children, free and exclusive from any control of her present or any other husband she may have." At the time of the testator's death Mrs. Spivey had three children, and the question is, whether she takes an absolute estate as tenant in common with those children, or an estate for life only, with the remainder to the children which she now has or may hereafter have. The construction which would give the property to her and her present children only as tenants in common of the absolute interest in it is inadmissible, both because it might, by diminishing the present and immediate interest in the wife, be an inadequate support for her during her life, and because it would exclude from the benefit of the fund any children she may hereafter have. The manifest intent of the testator will be much more effectually carried out by giving to the wife a life estate, with a remainder to all the children which she now has or may hereafter have; and as the property is bequeathed to trustees, in trust for the benefit of her and her children, this construction is fully supported by the recent cases of Bridgers v. Wilkins, 56 N.C. 342; Chestnut v. Mears, ibid., 416; Coakley v. Daniel, 57 N.C. 89. Had the bequest been a direct one to Mrs. Spivey and her children, then, under the authority of Moore v. Leach, 50 N.C. 88, we should have been constrained to hold that the wife and children living at the death of the testator took an absolute interest in the fund as tenants in common. The principle upon which the distinction is founded is stated and explained in the cases referred to and need not be repeated. The share of the testator's property given to Mrs. Spivey is for her sole and separate use, and the trustees may permit her to have the possession of it, provided the profits of it can be thereby secured to her.
2. The second difficulty suggested in the bill arises from the following sentence in the will: "The negroes already received by Mr. Faribault I wish counted in according to value, so that all share and share alike, and the mode of division I leave to the parties concerned, (221) desiring only that equality and justice may be their guide." The testator had, in the first clause of his will, directed that his "whole estate, personal and real, should be divided after the manner of law and equity" amongst the heirs of his body. He had in his lifetime given to Mr. Faribault, by parol, several slaves, among whom was a woman who had two children after she was put into his possession, and the question is, whether the slaves thus given are to be valued as of the time of the gift, exclusive of the children born since, or are the whole of them, including these children, to be valued as of the time of the division. There is no doubt that the effect of the will was to confirm the parol gifts and make them good ab initio, so that the issue of the female slave born afterwards and before the death of the testator belonged to the donee. Bullock v. Bullock, 17 N.C. 314; Woods v. Woods, 55 N.C. 420. Such being the case, and the will containing a direction that the division between the children shall be "after the manner of law and equity," we think the valuation of the slaves given to Mr. Faribault should be of the time of the gift, and thus exclude from it the children born afterwards. Ward v. Riddick, 57 N.C. 22, is an authority for this construction and explains the reason upon which it is founded.
The last question upon which the administrator cum testamento annexo seeks the advice of the Court arises from the following clause of the will: "Upon consultation, if Georgiana wishes to remain with her mother, provided it be possible, this house ought to be enlarged for her comfort, which I recommend, so as to make room for boarders also." Georgiana is one of the daughters of the testator, and the administrator wishes to know what is his duty in relation to the enlargement of the house; and if it is to be enlarged, at whose expense? The first remark which the clause suggests is that it seems to be more a recommendation than an imperative direction. If, however, it be taken to be the latter, we feel ourselves bound to hold it to be void for uncertainty. (222) When is Georgiana to decide whether she wishes to remain with her mother? How long is she to remain with her? How much larger is the house to be made for her comfort? How many boarders are to be provided for? What is to be the cost of the improvements, and who is to decide these questions? All these are matters of so much uncertainty that we do not feel ourselves able to give them a practical effect. The doctrine of endeavoring to effectuate the intention of a testator cy pres has been long since exploded in this State. That doctrine applies to a case where, from some case or other, the intention of the testator, though expressed in terms sufficiently explicit, cannot be carried out in accordance with his wishes. If, then, the Court will not attempt to direct the accomplishment of something approximating his declared wish, a fortiori, it ought not to attempt to accomplish a purpose expressed in such vague and uncertain terms that no person can hazard more than a mere conjecture as to what it is. See White v. University, 39 N.C. 19; Bridgers v. Pleasants, ibid., 26; McAulay v. Wilson, 16 N.C. 270; Holland v. Peck, 37 N.C. 255; Hester v. Hester, ibid., 330.
PER CURIAM. Decree accordingly.
Cited: Ballantyne v. Turner, 59 N.C. 229; Hooker v. Montague, 123 N.C. 158.
(223)