Opinion
June Term, 1855.
Construction of a Will depending on its peculiar phraseology.
ACTION of ASSUMPSIT tried before his Honor Judge PERSON, at the Spring Term, 1855, of Perquimons Superior Court.
No counsel for the plaintiffs.
Heath, for the defendants.
This was a case agreed, arising upon the construction of the will of Thomas Long, senior, of which the following are the portions bearing upon the question, viz:
"I give to my three sons, John Long, Joseph Long, and James Long, the plantation whereon I now live, and my grist mill, with the exception of those reserves thereafter made, to them and their heirs for ever: if either of my three sons, John, Joseph, or James should die under age, it is my will and desire that the two surviving should heir the same between them."
"I give unto my three daughters, Mary Long, Sarah Long, Harriet Long, and the child or children, which my wife now appears pregnant with, the following negroes, viz: Sam, Hannah, Thompson, Lewis, big Esther, and little Esther, reserving the use of Hannah to my wife, Doughty, during her life, and the use of big Esther and Lewis two years after my death: also, I give to my three named daughters, Mary, Sarah, and Harriett, and the child or children aforesaid, half a dozen silver table spoons and one dozen tea spoons, all of them to be equally divided among them at my daughter Mary's arriving at the age of sixteen years; and if either of my daughters, child or children as aforesaid should die, after the division, without lawful issue, it is my will that such part should be equally divided between my said wife and all of my surviving children, to them, and in that way to be enjoyed by them forever."
"I give unto my beloved wife, Doughty Long, two feather beds (c., embracing a great many small articles): I give the use of one-third part of my plantation and wood land, with the improvements thereon; the third part of my grist mill and the beufat and desk which stands in my hall room, during her widowhood."
And it was agreed that if by the true and proper construction of these clauses, there was a valid limitation over of the slaves Sam, Hannah, c., in the event of one of the legatees dying without issue before a division was made of said slaves, but after Mary had arrived at sixteen, the plaintiff should have judgment for the sum of five hundred and thirty-five dollars and seventeen cents with interest; otherwise, judgment was to be entered for the defendants.
Upon consideration of the case agreed, his Honor being of opinion with the defendants, gave judgment accordingly, and the plaintiffs appealed.
But for the reservation of a life estate to the widow in the negro girl Hannah, beyond all question, the cross limitation, in the event of one of the daughter's dying without a child, would extend, as well to the negroes as to the silver spoons. This circumstance, we think, is not enough to restrict the limitation, and confine its operation to the half dozen silver table spoons, and the dozen silver tea-spoons. The division could be made, subject to the life estate of the widow in one of the negroes, in the same way as land is divided among heirs at law — subject to the widow's dower.
This conclusion is confirmed by the fact that in the clause, next preceding, the testator gives to his three sons, the plantation on which he lives, and the grist mill, subject to a life-estate of the widow in one-third of the plantation, and one-third of the grist mill, and notwithstanding this reservation, makes a cross limitation in the event that either of his sons should die under age. We think the daughters took the slaves subject to the limitation over.
PER CURIAM. Judgment reversed and judgment for the plaintiff according to the case agreed.