Opinion
(December Term, 1844.)
1. A testator devised as follows: "I will and bequeath to my eldest son, Samuel, my two tracts of land lying on both sides of McCullock's Creek, in the northwest of Charlotte town, and the half of the house I live in, and also one negro, etc. I also give unto my second son, James, the other half of this house I live in, and the lot it is built upon, with other appurtenances thereunto belonging, and my lot at the east side of the spring head": Held, first, that by the devise of a house, the land on which it is situated will generally pass, unless a different intention can be collected from the will; but, secondly, that the intention of the testator was to give Samuel one-half of the house, and by necessity, the ground occupied by that half, and to give to James the other half of the house and all the remainder of the lot and appurtenances.
2. The testator further devised as follows, after having given a negro girl to his daughter Mary: "I also will and appoint that if any one of the said children shall or do die before of age, or before they have lawful heirs begotten of their bodies, and are come of age, that in that case what is then found of their legacy shall go or be given to the next one or two that is living, and equally divided between the two living; if but one surviving, to get the whole": Held, that the word legacy, as here used, referred to both real and personal estate, and that, upon the death of James, under age and without issue, all his property went to his surviving brother and sister.
Cause removed from the Court of Equity of MECKLENBURG. at Spring Term, 1843.
Alexander and J. H. Bryan for the plaintiff.
Osborn and Iredell for the defendant.
The case, presented by the pleadings and evidence and proceedings in the cause, is fully stated by the Judge delivering the opinion.
Samuel McComb died in 1795, having previously made his last will and testament, duly executed to pass real estate. At the time the will was made, he had three children, Samuel, James and Mary. The latter afterwards married the plaintiff, and is, since dead, leaving children. Samuel McComb lived several years after making his will, and had another son, Robert, one of the defendants. By his will, Samuel McComb devised as follows: "I will and bequeath unto (451) my eldest son, Samuel McComb, my two tracts of land lying on both sides of McCullock's Creek, in the northwest of Charlotte town, and the half of the house I live in, and also one negro wench, etc. I also give unto my second son, James McComb, the other half of this house I live in, and the lot it is built upon, with other appurtenances thereunto belonging, and my lot at the east side of the Spring Head." He then makes a bequest of a negro girl to his daughter Mary, then follows this direction, "I also will and appoint, that if any one of said children shall or do die before of age, or before they have lawful heirs, begotten of their own bodies and is come of age, that, in that case, what is to be then found of their legacy shall go or be given to the next one or two that is living, and equally divided between the two living, if but one surviving, to get the whole."
James died under age and without issue, leaving his brother Samuel and his sister Mary, alive. Robert McComb, the defendant, purchased from Samuel McComb his interest under the devise in the house and lots described in the clauses set forth above. The bill is filed for a sale of the lots, and for a division of the proceeds. The sale has been made under an order of the Court of Equity of Mecklenburg County, and the money is in the office awaiting the decree, as to the rights of the parties in the fund.
For Robert McComb, who stands in the place of Samuel McComb, it is contended here, that, by the devise of half of the house, one-half of the lot passed; on the other hand; the plaintiff claims, that under the devise to James, one-half of the house and the whole of the lot, excepting that portion on which Samuel's half stands, passed to him, together with the half of the back lot, being all of that lot owned by the testator. It is very certain that, by the devise of a house, land will pass. Croke Eliz., 89. Clemans v. Collins, 2 Term, 409. 2 Saund., 401, n. 2. 1 Tho. Coke, 173. The Touchstone, 74. And it is a general rule that the words made use of by a testator are to be understood (452) when unexplained by him, so as to have their legal effect and operation. If, therefore, the devise to Samuel stood alone, it would have the effect claimed for it, because the law would infer, in that case, that such was the intention of the testator. But this legal inference lasts no longer, when, from what the testator has said in his will, such clearly appears not to have been his intention. To hold otherwise, would be binding up people to legal technicalities, and making their ignorance a trap for them, without allowing them, in the instrument, to explain themselves. Crom v. Odell. 1 Ball. Bev., 472. Loveacres v. Blight, Cowper, 355. 2 Bal. Beat., 413. Beaumar v. Stock, 2 Bal. Beat., 413.
With a view to ascertain what is the meaning of a testator, every part of the will is to be considered, and such is the rule, both in courts of law and equity. Gittengard v. Stril, 1 Swanst., 28. Booth v. Blundell, 1 Mer. 217, and Pittman v. Stevens, 15 East., 510. Let us test this devise by these rules: The testator's real estate consisted of two tracts of land, adjoining the town of Charlotte, and the house and lots. We say this was the whole of his real estate, because he devised no other, nor is there any evidence that he possessed or owned any other. To his eldest son, Samuel, he devises the whole of the land in the country, and one-half of the house in town, and to James, in a separate and distinct clause, he devises the other half of the house, "and the lot it is built upon, with other appurtenances thereunto belonging, and my back lot." It has been argued that the word "half," so clearly connected with the only word in the clause of giving, overrides the whole clause, and governs the word "lot", in the succeeding part. We do not think so. The words are, "the lot," which import necessarily, the whole lot. This is strictly true, grammatically speaking. "The," is a definite article before nouns, which are specific or understood, and is used to limit or determine their extent. The lot, then, without more, means the piece of ground of an ascertained quantity, marked off in the plan of the town of Charlotte. But the testator goes on to be more specific, and adds the words, "upon which it is built." These latter words tell us what lot is devised, and the definitive article the, shows the intention to be the whole lot. Why use the (453) article the before "lot," if the testator meant to devise but one-half of it. Omit the article, and the half, according to that construction, might be meant. Nor does this construction at all interfere with Anonymous, 3 N.C. 161, nor with Black v. Ray, 18 N.C. 334. In both these cases, the things devised are all in one consecutive sentence, and followed by the words limiting the extent of the estate devised. No other construction could be placed on the words, with any regard to the ordinary rules of construction, as is observed by the Court in the latter case. But the testator in the two devises, we are now considering, has seemed to be desirous to leave nothing to conjecture as to his meaning. In the clause devising to Samuel a share in the house, he mentions nothing but half the house. In that to James he includes, "the lot upon which it is built, and with other appurtenances thereunto belonging," appropriately such buildings, rights and improvements, as are upon the land, and used with the dwelling house as appurtenances thereto. From the map, with which we are furnished, it appears there were on this lot several out buildings, and a part of it was a garden. The testator omits all these, when devising to Samuel, and uses words which embrace them all, when devising to James. In giving a construction to a will, every part of it is to be considered, and no words ought to be rejected on which any sensible meaning can be put, "every string must give its sound," for the meaning of the testator must prevail, when it can be fairly found in our language, and is not in contradiction to any rule of law. Edens v. Williams. 7 N.C. 27; Williams v. Lane, 4 N.C. 246; Clement v. Collins, 2 Term., 503.
To support and strengthen the construction put on the devise in favor of Samuel, it has been further argued here that it is a rule of construction that every devise is intended for the benefit of the devisee, and that it must have been the intention of the testator here to make a devise to Samuel, which would be useful to him. And, if the whole (454) lot is given to James, the devise to Samuel will be without any benefit. The rule is correctly stated, and is supported by the authorities cited by the counsel. To which we answer, a Court of Equity must not reason from inconvenient results, and thereby be induced to put a forced construction on the words used, or give them such a meaning as was obviously not the intention of the testator. Junes v. Johnston, 4 Ves., 573; Smith v. Streator, 1 Marivale, 361, and Bernard v. Montague, 1 Mer., 431; Hume v. Rundell, 2 Sim. Stre., 117. We do not mean to say, that, when the meaning is doubtful, the Court may not look to the inconveniences, which may result from one construction or another. It is true, that, in this case, it might have been more convenient to Samuel, and certainly more to his interest, to have one-half of the lot, as well as one-half of the house, but certainly it was a matter of interest to him, and much convenience to have a right to use one-half of the house, particularly as his land was adjoining the town, so that the devise is beneficial to him.
We are called on to put a construction upon another clause in the will: the one directing the survivorship, or how the property shall be disposed of, on the death of either of the devisees. It is not pretended that Robert has any interest in the division of the fund, except as the vendee of Samuel, or, as one of the heirs of James, if the devise over is inoperative. Two objections have been urged against the survivorship; one is, that it is too remote; and the other, that the real estate can not pass a legacy. As to the first objection, we do not think it arises in the case; because it is limited over to the children or child living, which ties it up to the event of James's death, without leaving issue. James died before he was twenty-one, without leaving issue. The property should go over, and the words of the will are satisfied. Upon the death of James, the limitation over to his brother, Samuel, and to his sister, Mary, took effect. But it is contended on behalf of Robert, that nothing survived but what was strictly a legacy, as the testator has made use of that word in this clause. The word "legacy" is properly applicable to bequests of personal (455) property, but may be extended to embrace other species of property not technically within its import, to effectuate the intention of the testator. This was a mixed fund, consisting of real and personal property. In the case of Hardacre v. Nash, 5 Term, 716, it was extended to embrace real estate, which was included in the clause. And so in Hope v. Taylor, 1 Dur., 268. In Sibly v. Perry, 7 Ves., 522, it was extended to annuities, and sec.2d, Hoper on Legacies, 335. The language of the clause is, "what is to be found of their legacy, shall go," etc. In Hardacre v. Nash is, "but in case either or both of my children should die before the decease of my wife, then those legacies which are here left them shall," etc. In what the testator calls a legacy were embraced several freehold estates, and the Court, to carry out the intention of the testator, decided that the latter passed under this clause, as well as the personalty, to the widow. Here the testator uses the word "legacy," as embracing real property together with personalty, and he intended the whole should survive. In this view, the difficulty arising from the uncertainty of the words used, "what shall be then found," is removed. The land is, then, as it was in 1795.
We are of opinion, then, that under the will of Samuel McCombe, his son, Samuel, took but one-half of the house, and from necessity the ground upon which it stood, and that James took the other, together with the whole lot except that upon which Samuel's half stood, together with the half lot adjoining. That upon the death of James, his share in the lot survived to Samuel and Mary, to be divided equally between them, and that Robert McCombe. by virtue of his purchase, stands in the place of Samuel McCombe. Robert will then be entitled to the whole of the value of one-half of the house, and the one-half of the balance, and the plaintiff, Williams, will be entitled to a life estate in one-half of the value of the legacy of James.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Tucker v. Tucker, 40 N.C. 84; McCorkle v. Sherrill, 41 N.C. 177; Cole v. Covington, 86 N.C. 298.
At the session of the General Assembly of 1844-5, the Honorable Frederic Nash, of Hillsboro, who had been previously appointed to the office by the Governor and Council, was elected a Judge of the Supreme Court, in the place of the Honorable William Gaston, deceased.
At the same session the Honorable David F. Caldwell, of Salisbury, who had previously received the temporary appointment from the Governor and Council, was elected one of the Judges of the Superior Courts of Law and Equity, to supply the vacancy occasioned by the promotion of Judge Nash to the Supreme Court Bench.
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