Opinion
(December Term, 1857.)
Where a testator, seized and possessed of a large real and personal estate, made a partial disposition of it to some of his children and to his widow, to the latter of whom he gave household and kitchen furniture, slaves, horses, farming implements, and many other things applicable and necessary for house-keeping and farming operations, leaving out the bulk of his land, and then adds, "I will that all the balance of my estate, real and personal, be disposed of as the law directs," it was Held to have been the intention of the testator that the widow should have her dower assigned in the mode directed by law in cases of intestacy.
CAUSE removed from the Court of Equity of Cabarrus county.
Osborne and R. Barringer, for the plaintiffs.
Boyden and V. C. Barringer, for the defendant.
The question in this case arises on the construction of the will of John Bost, which is as follows:
"First, I will and bequeath to my beloved wife, Sophia Bost, the following negroes, (naming nine) to her and her heirs and assigns. It is my will that she have my carriage and harness, one horse to be selected by her out of my horses on hand, and that she have my threshing machine and all the appurtenances belonging to it. It is my will that George W. Bost have his portion of my lands laid off to him at the place where he now lives, and, in the valuation of the said land, that he be allowed the valuation of all the improvements upon the said land.
"It is my will that John M. Bost have his portion of my lands laid off to him where he now lives, and that he be allowed the valuation of all the improvements on said land. It is my will that the balance of my negroes be divided between my children, and all the balance of my estate, real and personal, be disposed of as the law directs." To which is added a codicil as follows: "I do will and direct that my sons, George W. Bost and John M. Bost, have my mill and cotton-gin and screw, and all the appurtenances thereunto belonging, and so much of the land as is necessary for the use of the same, that is, beginning on the branch, c., (describing a parcel by metes and bounds) and also my negro boy George, the miller, to them, their heirs and assigns, with the condition that they give my wife, Sophia Bost, the one third of all the profits arising therefrom, after the necessary expenses have been paid for keeping up the mill, during her life. * * *
"I do further will and devise to my wife, Sophia Bost, all of my house-hold and kitchen furniture, and all of my farming tools that she may want; also my blacksmith's tools and all the appurtenances belonging to the blacksmith shop, and that she have the choice of my wagons and all the appurtenances belonging to it, and all the hogs that is on the home plantation, and six of the best cows, such as she may select; and further, that she have my wind-mill belonging to the thresher, and that she have two choice mules, such as she may select. I do further will, that the balance of my estate be disposed of as directed in my said will and testament."
The suit was brought by the petitioners, who are the heirs-at-law of John Bost, praying a partition of the land between them, to the exclusion of the widow from any further participation in the real estate than her share of the profits of the mill, which they aver was a valuable and ample provision.
The widow, Mrs. Sophia Bost, was made a party defendant to the bill, who answered, denying that the provision made for her by her husband's will, is at all ample, and insisting that, according to the evident intention of the testator, she is entitled to have an estate in the land equal to what would have been her dower, in case there had been an intestacy. She submits to such decree as the court may deem just and equitable.
The cause was set down for hearing on the bill, answers and exhibits, and transmitted to this Court by consent.
We are satisfied, from a careful perusal of the will, that the widow takes, under it, the same estate in the land that she would be entitled to by her common law right of dower. The testator makes a partial allotment of his land, by directing that his son George shall have his portion laid off so as to include his improvements, and makes a similar allotment in respect to the portion of his son John, leaving the land to be disposed of as the law directs, subject only to to this partial allotment; so, as a matter of course, the widow is to have her dower assigned in the mode directed by law.
Whatever doubt may have existed, taking the will by itself, is removed by the codicil. From that, it is manifest that the testator intended his widow to have dower in all his land, for in respect to the mill, he assigns her the part which the law directs, giving her one-third of the profits, after deducting the necessary expenses, during her life; which is one of the peculiar modes of assigning dower at common law in that species of property; thus leaving it to be inferred, as of course, that she was to take the third of the rest of his real estate during her life, which is to include the dwelling-house and improvements, as the law directs.
This conclusion, if it needed it, is fully confirmed by the bequest to her of the threshing machine, household and kitchen furniture, farming implements, blacksmith's tools, c.; — just such things as she would require to carry on her business in his mansion-house and plantation. Brown v. Brown, 2 Ire. Eq. 309, cited in the argument, upon examination, is found to support this construction. It certainly would require the most overwhelming weight of authority to justify a departure from what was, so manifestly, the intention of the testator.
PER CURIAM, Decree accordingly.