Opinion
(August Term, 1848.)
A testator bequeathed certain slaves to his wife for life, with power at her death to dispose of them as she might think proper, among her children. One of the children died in the lifetime of the testator, leaving children. Held, that the wife had no right, under this power, to appoint any of the slaves to the said last mentioned children.
CAUSE removed from the Court of Equity of GASTON, at Spring Term, 1848.
Avery, Bynum, and Alexander for plaintiffs.
Guion for defendants.
This bill was filed by Alexander Rankin and wife, Elizabeth Ann Rhinehart, Alexander Moore, and Robinson Moore against Andrew Hoyle, as the executor of Elizabeth Moore, deceased, and as the administrator with the will annexed of Alexander Moore, senior, deceased, and against Elizabeth R. Moore and the other children of James Moore, deceased; and its purpose was to obtain a judicial construction of the wills of said Alexander and Elizabeth Moore, deceased, and for the distribution of the property accordingly. The case made by the bill and answer is this: Alexander Moore by his will gave to his wife, Elizabeth, considerable property, real and personal, including several slaves, during her life, and at her death to be disposed of as she might think proper among her children. Elizabeth Moore, the widow, by her will gave a certain number of slaves, so bequeathed to her, to the children of her deceased son, James Moore. Alexander Moore died in November, 1837, having survived his son James Moore, who died in the preceding September, and Elizabeth Moore died in 1839. The will of Alexander Moore was made and published in June, 1834, and that of his widow in December, 1838. The plaintiff Elizabeth, wife of the (162) plaintiff Alexander Rankin, and the other plaintiffs, are the only children of Elizabeth Moore who were living at the death of their mother. The defendants, other than the executor, are the children of James Moore, deceased, and grandchildren of the said Elizabeth. The defendant Hoyle, as the executor of said Elizabeth and administrator with the will annexed of the said Alexander Moore, deceased, took possession of the negroes bequeathed by the said Elizabeth to his codefendants, and sold some of them, and holds the proceeds of the sale, together with the slaves not sold, subject to the direction of the court. The plaintiffs contend that their mother, Elizabeth Moore, had no authority, by virtue of the power given to her in the will of her husband, to bequeath the slaves to her grandchildren, and that, consequently, the said slaves or their proceeds in the hands of the executor belong to them. On the other hand, the defendants, the children of James Moore, deceased, insist that, under the provisions of the act of 1816, and by virtue of the power given in their grandfather's will to their grandmother, she might bequeath to them whatever she might have given to their father, had he been living at her death.
The question presented for our consideration has not hitherto, so far as we are aware, been decided or even discussed in our courts. The counsel for the defendants admits that, prior to 1816, a power to appoint to or among children did not authorize an appointment among grandchildren. Sug. on Pow., ch. 9, sec. 5, p. 501 (2 Law. Lib., 253) But he contends that the act of 1816 (1 Rev. Stat., ch. 122, sec. 15) makes an alteration of the law in this respect, not expressly, (163) but by necessary construction of its provisions. These provisions are, that when any person shall bequeath or devise any of his or her estate to his or her child or children, and such child or children shall have died in the lifetime of such testator or testatrix, in every such case the said legacy, devise, or bequest shall take effect and vest a title to the property or share of estate described and mentioned in the same in the issue of such child or children, if any, in the same manner and to the same extent as it would have vested in such child or children had she or they been in full life at the death of the testator or testatrix and taking effect of such will. Applying the act to this case, the counsel insists that the power given by Alexander Moore in his will to his widow to dispose of the slaves in question, at her death, among her children, had, upon its execution, the same effect as a bequest of them in the will of the testator, to his son James, which, as he died before the testator, would go to his children. In support of this proposition the counsel relies upon the well established doctrine that the appointee under a power takes from the instrument which creates the power, and not from that which executes it. Sug. on Pow., 331 (2 Law Lib., 22). Unfortunately for the argument, the power of appointment in this case is not to be executed in favor of the testator's children, but the children of his wife. The words of the will are, "to be disposed of as she may think proper among her children." These words may embrace children of the testator's wife by a former or subsequent husband — children who may not be his. If a power, then, which is given by a will have the same effect when executed as a bequest in the will, the act of 1816 cannot apply to this case, because the will does not authorize, by its terms, the execution of the power in favor of the person whose legacy would necessarily be saved from lapse by the operation of the act. But a more decisive answer to the argument is, that (164) when the testator's will took effect by his death, his son James Moore was not one of the objects of the power, he having died before his father. He was not then one of her children among whom she was authorized to appoint, and no case could be made to which the act of 1816 could apply. And his children also were excluded, because the power of appointment was confined to the wife's children. Whether if James Moore had survived his father, and the power given by the father's will had been to appoint among his (the testator's) children, it could have been executed in favor of the children of James after his death, or whether the act of 1816 applies to any case where the bequest is not directly to the child, but only to be carried into effect through the medium of a power of appointment among the children of the testator, it is unnecessary for us to decide. In the case presented to us we hold that the power was not well executed in favor of the grandchildren of the testatrix, Elizabeth Moore, and that consequently the plaintiffs are entitled to a decree for such of the slaves bequeathed by the will of the said Elizabeth to the defendants as are now in the hands of the executor, and for an account of the proceeds of such as he had sold.
PER CURIAM. Decree accordingly.
Cited: Williamson v. Jordan, 45 N.C. 48.
(165)