Summary
In Anderson v. Felton, 36 N.C. 55, where the provision of the will was for a division "at the time my daughter Sarah arrives to 15," Ruffin, C. J., held that only those children would take who were living when Sarah arrived at 15, saying that until the time appointed for the division the legacies did not vest. To the same effect, Threadgill v. Ingram, 23 N.C. 577; Skinner v. Lamb, 25 N.C. 157; Gregory v. Beasley, 36 N.C. 25; Nelson v. Moore, ib., 31.
Summary of this case from Cilley v. GeitnerOpinion
(June Term, 1840.)
Where a testator, after giving his manor plantation to his son, and two other plantations to his four daughters, and providing that all his lands should be rented, and his negroes hired out until his youngest daughter became fifteen years old, and that his children should "be educated and boarded out of the estate," proceeds as follows: "I likewise will that at the time my youngest daughter, S. T., arrives to the age of fifteen years, all my negroes, money and perishable estate, shall be divided between all my children. In case any of my children should be married before S. T. arrives at fifteen years of age, then my will is that his or her board shall be stopped, and no further charge be paid for him or her until S. T. arrives to fifteen, when he or she shall receive his or her proportionate part." It was held that the legacies to the children were not vested, but contingent upon their living to the period when the testator's youngest daughter should arrive to the age of fifteen years, or, in case of her death, to the time when she would have arrived at that age had she lived, and that only those of the children who were alive at that period, could take.
FROM the pleadings in this case, it appeared that Nathan Thatch died in the year 1832, leaving a will, in which, after providing for the payment of his debts and the working of the then growing crop, he devised and bequeathed as follows: "I will that all my perishable estate be sold. I will that all my lands be rented out and all my negroes be hired out until my youngest daughter, Sarah, becomes fifteen years old; and I will that my children that have not been educated be educated and boarded out of the estate; and I will that my mother be supported out of my estate during her natural life, and that my two plantations near Bethel M. House shall belong to my four daughters, Rosanna, Mary, Jane and Sarah, and I also give the plantation that I now reside on to my son, Benjamin Thatch. And I likewise will that at the time my youngest daughter, Sarah Thatch, arrives to the age of fifteen years that all my negroes and perishable estate shall be divided between all my children, and money likewise to be divided. In case that any of my children should be married before Sarah arrives at fifteen years of age, then my will is that his or her board shall be stopped and no further charge be paid for him or her until Sarah arrives to fifteen, when he or she shall receive his or her proportionable part." The testator had no wife at the time when his (56) will was made, and left no widow surviving him, but his five children were all living at his death. Mary, one of the testator's daughters named in his will, intermarried with the plaintiff in December, 1835, and shortly thereafter died, some time in the year 1836. Sarah, the youngest daughter, died shortly after the death of the testator, intestate, unmarried and before she had arrived to the age of fifteen years, at which age she would have arrived, had she lived, in October, 1838. The plaintiff, after the death of his wife, took out letters of administration on her estate, and in March, 1839, filed this bill, in which he claimed that the legacy of the "negroes and perishable estate" and "money" to the children of the testator was a vested one, and that after the time when the youngest daughter, Sarah, would have arrived at the age of fifteen years, had she lived, the said negroes, money and perishable estate were divisable among the children then living and the representatives of those who had theretofore died. The answers, admitting the facts, as above stated, to be true, insisted that the legacy was contingent, and that as the plaintiff's intestate had died before the period at which the property was to be divided, she was entitled to no share thereof.
W. A. Graham for the plaintiff.
M. Haughton for the defendants.
With every disposition to the contrary, we find ourselves obliged to hold the legacies in this will not to have been vested. There are no words of gift of the personalty, except by inference from the direction to divide; and as to the period of division, and consequently of gift, the will uses terms of strict condition — " at the time my daughter, Sarah, arrives to fifteen, and when he or she shall receive," etc.
To take the case out of the well-known general rule, several circumstances were relied on by the plaintiff's counsel. It was first argued that, as immediate estates in the land are devised, and as it and the negroes are to be hired out by the executors (59) for the same period and for the same purpose, the whole ought to be looked on alike as having been given presently, but to be divided at the future day. But to that we cannot accede. As to the land, it is given immediately, which shows the testator knew how to make such a gift when so minded; but it is not to be divided when Sarah shall be fifteen, for the testator himself makes the division between his daughters and his son; and as to the tract given to the daughters, there is no period of division between them designated. But there is no gift of the personal estate distinct from the provision for its division, which is to be made equally between all the children, and for the first time at the time Sarah should be fifteen. We cannot, therefore, infer a gift before that time. Consequently the legatees must be living at that time, so as then to answer the description of "children," or they cannot take. Sansbury v. Reade, 12 Ves., 75; Ford v. Rawlins, 1 Sim. Stu., 328.
As the testator died without leaving a wife, and intended his children should share equally, or nearly so, in his personal estate, it is possible that he deemed it unnecessary to make an express bequest, and considered they would, by law, succeed immediately. If this was so, then his directions refer simply to the enjoyment and postpone the period for that, from considerations of convenience. But this can be nothing more than conjecture; and we find no case that warrants a different construction of such expressions as are here used, when applied to legatees who are or who are not the next of kin of the testator.
Nor have we any difficulty from the notion that, as to the share of one dying before Sarah's age of fifteen, the testator is made to die intestate, though he intended the contrary. He is not intestate in that case. The gift is not to these persons nominatim, if living at Sarah's arrival at fifteen, but it is to the testator's children as a class at that period. The will, then, disposes of the whole personal property, unless all the children should be dead before that period, and in that event there would be a total intestacy, or, rather, the whole disposition would fail, because (60) the testator did not contemplate that event and provide for it.
The provision for maintenance will not bring the case within that exception to the general principle which is founded on a gift of the intermediate interest or profit to the same legatee to whom the future legacy of the capital is given. That does not apply if the maintenance is not to absorb the whole amount of profit, or if it be not restricted to that as the only fund. Pulsford v. Hunter, 3 Bro. C. C., 416; Hanson v. Graham, 6 Ves., 249; 1 Rop. Leg., 497. Here the intermediate profits are not given to the children as distinct from the capital nor for the purpose of maintenance. The maintenance is merely a charge, which may not consume the profits, or it may greatly exceed it, and in that case the capital must supply the deficiency. Besides, the maintenance itself was to cease upon the marriage of a child before the division.
Upon the whole, we can lay hold of nothing in the will to control the words of condition. The circumstance that the testator contemplated the marriage of one or more of his children before Sarah's age of fifteen, and that, notwithstanding such children would take nothing in the event of their deaths before that period, although they might leave a child, had its weight and induced us to pause in adopting the construction. But it is not sufficient of itself. It shows either that the testator had an unnatural intention or that he did not think of the death of a child, leaving a child, before the day for division. The latter is more probable, but in neither case would the court be justified in rejecting his words or refusing to carry into effect his intention, as collected from the established interpretation of his language. The opinion of the Court is that only those children take who were living when Sarah would have been fifteen.
PER CURIAM. Decree accordingly.
Cited: Devane v. Larkins, 56 N.C. 381, 382; Myers v. Williams, 58 N.C. 365; Bowen v. Hackney, 136 N.C. 190.
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