Opinion
June Term, 1857.
The grammatical construction of a clause in a bequest will be disregarded, if it becomes necessary, in order to arrive at the intention of the testator.
Where one bequeathed a female slave to A, a son, for life, remainder to B, a son of A, and added: "and if the said woman hath increase, to be equally divided among all his children," it appearing that, at the time the will was written, A had several children besides B, but B had none at that time, though he had children afterwards, it was held that the pronoun, "his," referred to the children of A, and not to those of B.
ACTION of DETINUE for slaves, tried before his Honor, Judge SAUNDERS, at the Spring Term, 1857, of Rockingham Superior Court.
The controversy in this case arises on the following clause of the will of Isabella Martin, viz: "1st. I give and bequeath to David Scott, my son, one negro woman, Pat, during his life, and at his death, to his son Andrew, and if said woman hath increase, to be equally divided among all his children."
The suit is brought by the plaintiffs, who are the children of Andrew, against the defendants, who are the children of David Scott, for slaves, who are the descendants of the woman Pat.
Isabella Martin died in 1820. The will was made in 1813, at which time Andrew Scott was a single man without children, and Pat, at that time, had no children; but David Scott, besides Andrew, had several other children, and has had others born to him since, all of whom, except Andrew, are defendants in this suit. David Scott, the life-holder, died before this suit was brought, in possession of the slaves in question, and on his death they went into the possession of the defendants. The foregoing facts were stated in a case agreed, and submitted to the judgment of the Court, with a further agreement that, if his Honor should be of opinion with the plaintiffs, a judgment was to be rendered for the plaintiffs, and that the values stated in the writ be taken as the true values; but if of a different opinion, a judgment of nonsuit should be rendered.
On consideration of the case, the Court decided for the defendants, and the plaintiffs took a nonsuit and appealed.
McLean and Ruffin, for plaintiffs.
Morehead and Miller, for defendants.
The case arises under the first clause of the will of Isabella Martin. By it, she gives to her son, David Scott, as follows: "I give and bequeath to David Scott, my son, one negro woman Pat, during his life, and at his death, to his son Andrew, and if said woman hath increase, to be equally divided among all his children." David Scott died before this suit was brought, and, at the time Isabella Martin made her will, had other children besides Andrew, and, at the time of his death, others were born. It is agreed that, at the time of the bequest, Andrew Scott had no children, and that the negro woman had no increase, and that the slaves in question are the offspring of Pat, born since the publication of the will. It is further agreed that the plaintiffs are the children of Andrew Scott, and the defendants the children of David Scott. The plaintiffs contend that the pronoun "his," in the close of the item, and preceding the word "children," refers to the children of Andrew; the defendants, that it refers to the children of David Scott, and of this opinion is the Court.
It is a rule of grammar that the pronoun refers to the next preceding antecedent. Grammatical construction, therefore, would require us so to refer it in this case, if we were not satisfied from the clause itself, such was not the meaning of the testatrix; Jones and others v. Posten, 1 Ire. Rep. 170. The case agreed states that, at the time the will was written, David Scott had other children besides Andrew, and the latter had none. The clause, it must be admitted, is very obscurely written. We think, however, the difficulty is occasioned by the want of proper punctuation. It is obvious that the prominent idea in the testatrix's mind, in this clause, was the making provision for her son David, and for Andrew, the son of David. In the first part of the item under consideration, she effects her purpose by giving David a life-estate in the slave, Pat, and the absolute property in her, in remainder, to Andrew. Here, then, was an entire disposition in Pat. But it occurred to the mind of the testatrix, that in making this disposition of her, if she should have children, (and she was then young,) she would be giving Andrew an undue proportion of her property over his brothers and sisters. She then proceeds to distribute Pat's children, if she should have any. When she disposed of Pat, one prominent subject was arranged, and there ought to have been either a full stop, or a colon, or a semi-colon, marking either the change of the subject matter, or a pause, or rest in the operations of the testatrix's mind. After disposing of Pat, she resumes the subject by disposing of Pat's offspring: "if said woman hath increase, to be equally divided among all his children." These clauses are to be considered as parts of distinct sentences containing distinct gifts. In this view, whose children are meant? We think David's children. Why should she single out Andrew as the peculiar object of her bounty, to the entire neglect of David's other children. And why should she prefer Andrew's children, if he should have any, to David's other children. The latter were nearer in degree to her than the former. They were known to her. We admit the solution of the question is not without its difficulties, and, in such case, we think it more safe to decide in conformity to the dictates of nature, than to violate her laws. By referring the last pronoun to David's children, equal justice will be done to all, and we are at liberty to presume that such was the intention of the testatrix. See Jones and others v. Posten, supra. This idea is confirmed by the use of the word "all." She meant, we think, obviously, all of David's children, of whom Andrew was one. We concur in opinion with the Judge below. There is no error.
PER CURIAM. Judgment affirmed.