Opinion
(June Term, 1848.)
1. In a will the grammatical construction must prevail, unless a contrary intent plainly appears.
2. A bequest of a negro woman and her increase, without any explanatory words, will not entitle the legatee to a child of the woman, born before the testator's death. But if there be any expression in the will showing an intent on the part of the testator that the child, so born, shall be included in the gift of the mother, then the legatee shall take it; as where, in such a bequest, one of the children of the mother is expressly excepted, this shows the intention of the testator that the legatee should take all the children, except the one excepted.
THIS case came on to be heard upon exceptions to the master's report, which exceptions are sufficiently set forth in the opinion of the Court.
Morehead and Norwood for plaintiff.
Kerr and E. G. Reade for defendants.
The bill was filed in the court of equity for CASWELL by Robert Love, Marmaduke Kimbrough and his wife, Sarah, Benjamin D. Purely and his wife, Margaret, Samuel Love and his wife Mary, and Martha Love by her father and next friend, Samuel Love, against John C. Love, executor of John Love, deceased, and John McKissack and his wife, Elizabeth Elmira, in which the plaintiffs claimed as legatees under the will of the said John Love, and prayed for an account from the executor and the payment of their respective legacies. The defendant John C. Love filed his answer, and thereupon an order was made that the master should take an account between the parties, which was accordingly done; and upon the coming in of his report, exceptions thereto were filed by the plaintiff and the cause was transmitted to this (202) Court.
The case made by the bill and answer, so far as is necessary to a proper understanding of the report and the exceptions thereto, is as follows: John Love died in the year 1844, having previously made and published his will, wherein, among other bequests, he bequeathed as follows:
"6th. I give to my daughter Elizabeth Elmira McKissack a negro girl named Beck, to her and her heirs.
"7th. I give to my son John C. Love a woman named Lyn and all her increase, except a girl named Thene.
"8th. It is my will that if I do not sell Thene, my son John C. Love have her to him and to his heirs, etc. My will is that my stock of horses, half of my cows, wagon, sheep, and hogs be sold, my just debts paid out of the said money, and the balance to be divided between my four children, namely, Robert, Sarah, Mary, and Elizabeth; all the balance of my estate, viz., stock that is not mentioned above, also my household and kitchen furniture, I give to my son John C. Love and his heirs, etc."
John C. Love was appointed executor, and, after probate of the will, was duly qualified and took upon himself the burden of its administration.
The bill charged that the girl Beck, given to Elizabeth E. McKissack, had a child named Sally, born in the testator's lifetime, which did not pass under the will, and for which the executor was bound to account, and had failed to do so; that the testator left, as part of his personal estate, a number of horses, stock of cattle, hogs and sheep, an ox cart, a quantity of provisions, and many articles raised on the farm, for which the executor had also failed to account; and that he had likewise neglected and refused to account for the children of Lyn born in the testator's lifetime, as it was alleged that he was bound to do.
The executor in his answer stated that he was, and had at all times been, ready to account with the plaintiffs for every part of his testator's estate to which they were entitled; that he had sold the horses and half the cattle and other stock, and returned an account of the sales thereof to the proper court; that the ox cart was his own (203) property; that half the cattle and other live stock was given him by the will, and that he claimed all the crop and provisions on hand at the testator's death by virtue of a contract made with the testator in his lifetime, to the effect that if he would live with the testator and manage his business, he, the defendant, should have all that he could make, after supporting the family, and that he had fully complied with the said contract in every particular. He admitted that he had children of Lyn, born before the death of the testator, in his possession, claiming them as his own, under a bequest in his testator's will, and he utterly denied the right of the plaintiff to them or any part of them. As to the child Sally, alleged to have been born of the woman Beck before the death of the testator, he answered "that he had understood, and had no reason to disbelieve, though he did not know of his own knowledge, and therefore did not admit, that negro woman Beck, given in the will to Elizabeth McKissack, had a child named Sally born before the death of the testator; and he further stated that the said Elizabeth had been living in Tennessee for a great number of years, claiming and using the negroes as her own, and he had been advised that, by the laws of that State, he could not recover, if there were any child of the said Beck; and he stated, further, that he believed that if he had attempted to recover, it would have been attended with great expense to the estate — probably more than the value of the negro, if he had been successful."
The report of the master exhibited a statement of what was in the hands of the executor after charging him with all which the master thought he ought to be charged with, and allowing all proper disbursements; and it also exhibited the testimony upon which the charges were made and the disbursements allowed, among which testimony was a copy of the account of sales returned to the county court by the executor.
The exceptions filed by the plaintiffs to the report were as (204) follows:
1. The master has submitted no evidence of the amount of the estate which came to the defendant John C. Love's hands, nor does he show of what sums, how raised, or from what sources, he made the aggregate amount with which he has charged the said defendant.
2. The master has credited the defendant with $39 paid attorneys, without evidence that the service of counsel was required in matters pertinent and proper for the estate.
3. The master has failed to charge defendant with the stock of provisions on hand at testator's death, or with any of the proceeds of articles raised on the farm.
4. The defendant is not charged with the horses on hand, and permits the defendant to retain them as his own; that he has omitted to charge the defendant with half of all the stock, other than cows.
5. That the master has failed to charge the defendant with the children of the woman Lyn, and has taken upon himself to construe the will, and gives to defendant all Lyn's children and half of all the stock, other than cows, which construction is erroneous and against law.
6. That defendant is not charged with an ox cart.
7. That the report is not sustained by the evidence, and is against the testimony in the cause.
8. The defendant is not charged with the child of the woman Beck which was born before the making of the will.
We have examined the testimony taken by the master, and must overrule the first exception, because the plaintiffs have produced no evidence to show that the amount of the estate which came to the hands of the executor was different from what it appeared to (205) be from his answer and account of sales. The master was therefore justified in stating that to be the true amount.
The second exception we must overrule, also, because the plaintiff has failed to show that the charges were improper or unreasonable.
The third exception is overruled, because the testimony satisfies us that the executor was entitled to all the articles mentioned in the exception, under a contract made with his testator in his lifetime, and which was fully performed on his part by the executor.
The fourth exception is also overruled, because it appears from the testimony that the testator had, at the time of his death, but two horses, and they were sold as a part of his estate by the executor; as were also one half of the cows and other stock. The other half the executor is entitled to upon a proper construction of the will. That is certainly the grammatical construction, and according to Jones v. Posten, 23 N.C. 171, it must prevail, unless a contrary intent plainly appears, which is not the case here. Besides this, it appears from the testimony that the defendant was entitled to one-half of the stock, other than horses, under contract with the testator.
The fifth exception cannot be sustained, and must also be overruled. It is well settled that a bequest of a negro woman and her increase, without any explanatory words, will not entitle the legatee to a child of the woman born before the testator's death. But if there be any expression in the will showing an intention on the part of the testator that the child, so born, shall be included in the gift of the mother, then the legatee shall take it. Stultz v. Kiser, 37 N.C. 538. Here the exception of the girl Thene from the bequest of the woman Lyn and all her increase shows plainly the intention of the testator that the legatee should take all the children which Lyn then had, except Thene; and this intention is still more plainly manifested by (206) the testator's giving, in a subsequent clause of his will, the girl Thene to the same legatee, in the event of his failing to sell her. The construction placed upon the will by the master was therefore right in point of law, and must be sustained.
The sixth exception must be overruled, because the ox cart, to which it relates, is proven to have been bought by the executor himself, and was no part of the testator's estate.
The seventh exception is overruled because it is too general and indefinite.
The eighth exception has raised rather more difficulty than we have found with the others. The allegation in the bill, that the woman Beck, given to Elizabeth McKissack, had a child born in the testator's lifetime, is neither expressly admitted nor denied in the answer, and there is no testimony taken upon that point. We cannot, therefore, declare the fact that there was such a child born as above stated; yet we think that it is manifest from the answer that the executor believes the fact to be so, and we suspect that it is so. Under these circumstances the plaintiff may, if he choose, have it referred to the master to inquire whether the woman Beck had a child named Sally born before the testator's death and living at the time of his death; and, if so, what was her value at that time; and whether the share of the estate to which Elizabeth McKissack is entitled under the will be sufficient to answer for the value of Sally, or of any and what part of such value.
PER CURIAM. Decree accordingly.
Cited: Joiner v. Joiner, 55 N.C. 74; Williamson v. Williamson, 57 N.C. 285; s. c., 58 N.C. 144; Fairbairn v. Fisher, 58 N.C. 387; Kelly v. Odum, 139 N.C. 280.
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