Opinion
(December Term, 1845.)
1. A, being about to be married, conveyed certain slaves to a trustee, in trust for herself and future husband during their joint lives, and, if she survived her husband, to her use only; if he survived her, then to such person or persons as she might bequeath them to by will, and, if she made no will, then to the use of the husband for life, remainder "to the use of her next of kin, under the statute of distributions;" Held, that A, having died without executing the power, the husband was only entitled to a life estate; that he was not one of her next of kin under the statute of distributions, and the remainder of the slaves, after his death, belonged to her nearest relatives of her blood, who were such next of kin under the statute.
2. Even if the conveyance had been to "her legal representatives, according to the statute of distributions," the husband could not have taken, because he is her legal representative, jure mariti, and not according to the statute.
This cause was removed, by consent, from the Court of Equity of BERTIE, at the Fall Term, 1845, to the Supreme Court.
Bragg for the plaintiff.
No counsel for the defendants in this Court.
The bill set forth that, in 1838, the plaintiff intermarried with Mary Johnson; that, previous to the said marriage, a marriage settlement was entered into by the said parties, in which the defendant was made a trustee. The material parts of the said settlement were, "That the said Mary Johnson of the first part, the said Robert Peterson, the plaintiff in this suit of the second part, and Lorenzo S. Webb, the present defendant, of the third part, entered into this indenture, and it witnessed, that whereas, the parties of the first and second part were about to enter into the civil and religious contract of marriage, and whereas, it is intended between the said parties, that such property as is hereinafter mentioned, belonging to the said Mary Johnson, shall not vest absolutely in the said Robert Peterson, but shall be secured for the joint use of the said parties of the first and second part, during the continuance of the marriage, and to the survivor during his or her life, and afterwards to such persons as the said Mary Johnson, by her last will and testament, executed to pass personal property according to the laws of North Carolina, shall appoint; (57) or, in default of such appointment by her, to her legal representatives according to the statute of distributions of this State. Now, therefore, etc.," and the deed proceeded to convey certain slaves to the defendant, Lorenzo S. Webb, his executors, etc.; "In trust, nevertheless, for the purposes hereinafter declared; first, for the joint use, after the solemnization of the said intended marriage of the said first and second parties, during their marriage; secondly, if the said party of the first part shall survive the said party of the second part, then to the sole use of her, her heirs, executors or administrators; thirdly, in case of the death of the said party of the first part, before the party of the second part, to his use during his natural life, and, after his death, to the use of such person or persons as the said party of the first part shall, by will, duly executed according to the laws of this State, appoint; or, in default of such appointment, to the use of her next of kin under the statute of distributions." The bill then alleged, that this marriage settlement having been duly executed, proved and registered, the said Mary died, without having made any appointment under the power therein contained; that the plaintiff, as her husband, took out letters of administration on her estate, and claims the whole interest in the said slaves, and prays that the defendant, Lorenzo S. Webb, may account, etc. The next of kin of the said Mary Peterson are also made parties defendant, and they insist on their right to the property, after the expiration of the life-estate of the husband, the plaintiff in the cause. The trustee submits to any decree the Court may make in the premises, none of the facts being disputed on either side.
The deed of marriage settlement, mentioned in the pleadings, was made in 1836, and by the terms of it, the wife, if she survived her husband, was to have all the slaves mentioned in it; but if she died before him, she (58) had a power to bequeath them by will to whom she pleased; and, in case she made no will, the slaves were to be held by the trustee, to the use of the husband for life, remainder to the use of her next of kin, "under the statute of distributions." Mrs. Peterson died without making any will. The husband, having taken administration on his wife's estate, has filed this bill, calling upon Webb, the trustee, to convey the said slaves to him absolutely. We do not think that he is entitled to any such decree. The next of kin of his wife, at her death, were her relations by blood, and the husband, in that sense of the term, was not of kin to his wife. Watt v. Watt, 2 Ves., 244; Bailey v. Wright, 18 Ves., 50; Jones v. Oliver, 38 N.C. 369.
In the beginning of the deed, and before any conveying words are used, or trusts declared, the parties recite the inducement to the making of the same; and they state, that it is intended, if the wife should die before the husband, and in default of any appointment by her, then the slaves, after the death of the husband, should go "to her legal representatives, according to the statute of distributions." The husband is the administrator of the estate of his wife, and is her legal representative, jure mariti, and not according to the statute of distributions. It is therefore clear, according to the context, that he is not the person designated in the sentence, to take in the event which has happened. But, if it appear from the dispositions in the whole instrument, whether it be a deed or will, that those words (legal representatives) were used in reference to other persons than executors and administrators, that interpretation will prevail and those other persons will take. 1 Roper on Legacies, 108, 110. We think, that it is here manifest, when the whole deed is read, that the trust for the husband is for his life only, in the event which has happened; and that the remainder in the slaves, after the death of the husband, was to go to the next of kin in blood of the wife, who were so, at her (59) death. The bill must be dismissed.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Boyd v. Small, 56 N.C. 42.