Opinion
(December Term, 1859.)
Where a testator having seven daughters provided for one by name, and then directed that the residue of his estate should be divided into nine equal parts, three of which were to go to his three sons and the other six parts to be allotted to his daughters, it was Held that the meaning of the testator was that each of the six daughters remaining to be provided for should have one of the six remaining equal parts.
CAUSE removed from the Court of Equity of NEW HANOVER.
(22) Fowle and W. A. Wright for plaintiff.
Person for defendants.
The bill is filed by Charlotte Shepard, the executrix of Alfred Shepard, praying a construction of his will for her guidance and protection. The part of the will immediately in question is as follows: "I give and bequeath to my friend, Joseph M. Foy, of the county of New Hanover aforesaid, the following negro slaves, viz.: Judy and child, Gould and Abel, to have and to hold the said slaves in trust, nevertheless, for the sole and separate use of my daughter Eliza, the wife of John B. Wright, during her life, and after her death for the use and benefit of such child or children as she may leave surviving her; and I further will and desire that after the negroes hereinbefore bequeathed to my (21) wife and the said Joseph M. Foy, trustee as aforesaid for my daughter Eliza, shall have been taken and received by them respectively that the rest and residue of my said negroes shall be divided into nine equal parts, of which my sons George E., Joseph C., and Thomas A. shall be entitled to and receive one share each, and the remaining six shares, which shall be allotted to my daughters, I give and bequeath to my friend, Joseph M. Foy, to have and to hold the said slaves in trust, however, for the sole and separate use of my said daughters, according to the allotment aforesaid." Besides his daughter Eliza Wright, named in the foregoing clause, the testator left six other daughters, to wit, Carolina Shepard, Charlotte Shepard, Margaret McKimmon, Fanny McAllister, Mary Nixon, and Henrietta Coffield.
The executrix sets forth that she has delivered to Foy, the trustee, for the use of Mrs. Wright, the four slaves — Judy and her child and Gould and Abel — and that after taking out her own part given by a former clause of the will she delivered three shares of the residue to the testator's three sons and the remaining six shares of the slaves belonging to the estate to the trustee that they might be divided off among the six daughters, excluding Mrs. Wright, who was not considered by her as entitled to any further share of the said slaves. The executrix states that Mrs. Wright contends that she is not only entitled to the use of the four slaves given in the first instance, but also to a share of the remaining six shares, after taking out the three shares of her brothers. This is objected to by the six daughters unprovided for, and to save herself from the danger of loss from a wrong view of the subject, she calls upon the parties to appear and litigate the matter before the court of equity. The defendants all answered. Eliza Wright insists upon the construction of her father's will which will let her in for a part of the six shares, while all the others acquiesce in the view taken of the matter by the executrix, and so insist before this Court.
It will be perceived by a reference to the will that the testator makes provision for a widow and ten children — three males and seven females.
In making a disposition of his slaves, he gives a lot specifically to his wife, with remainder over.
He then gives a specific legacy for the sole and separate use of his daughter Eliza Wright of four slaves, with limitation for life, and remainder over.
The testator next directs that after the respective parcels allotted to his wife and daughter Eliza shall have been taken out from the whole, the residue shall be divided into nine parts, three of which shall be the property of his three boys, respectively, and the other six be allotted to his daughters, and these six lots are also secured for the sole and separate use of his said daughters.
It is obvious the testator intended to confine this last bequest to six daughters, and it seems equally clear that the six were those for whom he had made no immediate provision in the previous part of his will. It is not practicable to distribute six lots among seven persons and preserve the distinctive character of the lots. And if the testator had intended to give Eliza, for whom he had just made a provision, a share with the others of the residue, he would have provided the requisite number of lots by consolidating and redividing.
The construction contended for by Eliza Wright, one of the legatees of the will, is therefore manifestly erroneous, and the true construction declared to be in accordance with the views and action of the executrix; that is to say, the six remaining lots of the residue of the slaves should be distributed to the six daughters, viz., Caroline, Charlotte, Margaret, Fanny, Mary, and Henrietta, and be held by the trustee named in the will for them in conformity with the trust created.
PER CURIAM. Decree accordingly.
(23)