Opinion
02-09-1818
Allen v. Bird and Others
Reuben Allen sen., of Shenandoah County on the 1st of September 1779, made his last Will, (admitted to probate in November following,) by which he bequeathed to his daughters, Hannah who afterwards married George Bird, and Mary who afterwards married Benjamin Hawkins, 10001. each, without adding the word " specie," or the words " current money; " one third part thereof to be paid by each of his sons, Thomas, Aaron and John, upon their respectively attaining the age of twenty one years; of whom Thomas died, shortly after the testator, under age and unmarried. The testator devised to his said sons all his lands (which, at the date of the Will and afterwards, were very valuable,) and three fourths of his personal estate; and died unincumbered with debt. The Will directed farther, that, in case his son Thomas Allen should die before he arrived at the age of 21 years, or married, or, if married, should die without heir, then the estate bequeathed to him should be equally divided between his sons Aaron and John Allen, they or his executors paying his daughters' proportion of his estate bequeathed them, at such time as tho' he the said Thomas Allen had lived to the age of twenty one years.
Upon this Will, the surviving sons Aaron and John contended, that the legacies to the daughters should be reduced by the scale of depreciation: the daughters' husbands insisted that it was the testator's intention to give them each 10001. in specie.
A suit in the Superior Court of Chancery was therefore brought, in their behalf, against Aaron Allen and John Allen, sons, heirs and devisees, and Joseph Moore administrator of Richard Moore who was executor of the deceased.
The other circumstances of the case, considered important by this Court, are set forth in its opinion.
Chancellor Brown had " some doubt as to the real intention of the testator; yet, upon consideration of all the evidence, and all the circumstances, was of opinion, that his intention would be most probably carried into effect by adopting that interpretation of his Will which appeared most just, and by decreeing the legacies in the currency of the present day. He would have decreed the appropriation, towards this object, of the [UNREADABLE WORD] which appeared to be in the hands of the Executor; but that it was thought most proper to leave that matter to the County Court, where a suit was pending against the executor, and where justice could be done between him and the other defendants in this cause." The suit appearing to have been compromised between the plaintiffs and the defendant John Allen, the decree therefore was, that the defendant Aaron Allen do pay to the plaintiffs Hawkins and wife the sum of 5001., with 5 per cent. interest on 1601. 13s. 4d. part thereof, from the 1st of October 1793, until paid, and with like interest on the residue thereof from the 1st of October 1795, until paid; (the aforesaid several periods being the dates at which it appeared that Thomas and Aaron Allen would have attained their respective ages of 21 years, if they had both lived; ) that he do pay to the plaintiffs Bird and wife the like sum of 5001. with like interest from the dates aforesaid; and that he pay the costs of this suit. It was farther decreed that, if the said defendant should fail to make the said payment on or before a given day, certain persons named as Commissioners should, after advertising & c., sell the land devised by the testator as aforesaid to the said Aaron Allen, or so much thereof as would be necessary, to satisfy this decree, & c. The Bill was dismissed as against the defendants Joseph Moore and John Allen, but without costs.
From this decree, an appeal was taken.
Decree affirmed.
OPINION
Judge Roane pronounced the following opinion of this Court.
The Court is of opinion that, as the testator is proved to have valued his land, and perhaps offered it for sale, not very long before his death, for about the sum of 30001. which, if reduced by the scale as of October 1779, (the probable time of his death,) was only equal to a little upwards of 1001. in specie; and as the land is admitted on all hands to have been extremely valuable; he could not, in making such offer and valuation, have meant the paper money of the day: nor is it presumable that he meant it in his Will, which was nearly a cotemporaneous act. --This construction is fortified by the omission to use the term " current money," in giving the legacies in question; and by his having kept his accounts in specie, and received notes in the same currency, as appears from a list reported by the Commissioner.
On these grounds, added to the extremely reduced sum, which the legacies, if scaled, would yield to his daughters, who it is not shewn had ever displeased him, and which were also postponed to very distant days, we are induced to think he could not have meant the paper currency at the time of the devise in question. --Had he meant that currency, he might easily have caused it to be paid at once, by selling a small portion of his personal property.
The Decree is therefore to be affirmed.