Opinion
(June Term, 1866.)
Where a testator used the following expression: "I give and bequeath unto my wife Sarah, all of the property that I possess at the time of my death, consisting of all my real estate of all kinds, and all my money, notes and accounts, after paying all my just debts;" "My father and mother are to have the land lying on the southeast side of the Reedy branch, of the tract of land where they now live, and the stock, household and kitchen furniture, at that place;" and mentioned no other things in his will, although he died in possession of fifteen or more slaves, and of horses, cattle, crops, etc. Held, that the wife was constituted universal legatee, except in regard to what was expressly given to the father and mother.
BY PEARSON, C. J., arguendo:
(1) The words used in different wills are so different, and the circumstances of testators, in regard to property and the objects of bounty, are so various, that it is almost impossible to find one case upon such subjects that ought to govern another.
(2) In doubtful questions of constructions, something must be yielded to the contemporaneous action of the parties concerned.
ORIGINAL BILL, for a residue alleged to be undisposed of, filed at Spring Term, 1861, of NASH. Subsequently a demurrer was filed by the defendant, and at Fall Term, 1862, the cause was set down for argument and removed to this court.
Moore, for the complainant.
Batchelor, for the defendant.
The bill stated that the complainant was the father of the testator, B. B. Bunting, late of Nash County, who died in 1847, without issue, leaving a widow; and that the defendant was the executor of that widow, and, as such, also of the testator. After giving an extract from the testator's will, and stating that he died in possession, among other things, of certain slaves, some of which the widow sold to pay the testator's debts, and others she retained until her death, in September, 1860, when they came into the hands of the defendant; the bill further stated that the complainant had been advised that the slaves did not (12) pass under the will, but were to be divided between the widow and himself, under the statute of limitations; and there was a prayer for an account for distribution, and for other relief.
The following is the dispositive portion of the will referred to: "I give and bequeath unto my wife, Sarah, all the property that I possess at this time, or may possess at the time of my death-consisting of all my real estate of all kinds, and all my money, notes and accounts, after paying all my just debts; and my wife, Sarah, is to settle all my business if it is her wish, without an administrator. My father and mother are to have the land lying on the southeast side of the Reedy Branch of the tract of land where he now lives, and the stock, household and kitchen furniture at that place; and not to be dispossessed of it during either of their lives, and at both of their deaths, that part of my estate is to be divided between my brother and sister Susan, share and share alike. In witness whereof," etc.
The bill is very meagre in its statements, and, on that account, the court has been much embarrassed.
We are informed that the testator died without children, leaving him surviving a wife, father and mother, brother and sister. We are (14) also informed that, at the time of his death, the testator owned some fifteen or twenty slaves; but we are not informed whether he owned any land (except the tract devised to his father and mother), or whether he owned any horses, cattle, hogs, crops on hand, etc. There is nothing to authorize the court to assume that he did not own any land except the tract devised to his father and mother, and that he was cultivating the land of his wife, with negroes, horses, etc., acquired "jure mariti."
We are also informed that, by his will, he bequeathed and devised as follows: "I give and bequeath to my wife, Sarah, all the property that I possess at this time, or may possess at the time of my death, consisting of all my real estate of all kinds, and all my money, notes and accounts, after paying all my just debts." "My father and mother are to have the land lying on the southeast side of the Reedy Branch, of the tract where he now lives, and the stock and household and kitchen furniture at that place."
The notion that this man intended to give to his wife lands, notes and accounts, subject to the payment of his debts, and to his father and mother the tract of land on which they lived, "and the stock, household and kitchen furniture at that place"; and that he died intestate in respect to fifteen or twenty slaves, and to horses, cattle, hogs, crops, etc., is so contrary to the ordinary course of things that every one will exclaim: There must be some mistake about it! Such could not have been his intention! Either the draftsman of the will has, in the former of the clauses above cited, used the word consisting instead of the word including, or else the word real to signify corporeal property, to wit: negroes, horses, farming utensils, crops, etc., as contradistinguished from things incorporeal, to wit: money, notes, accounts, etc. We think, by its proper construction, the will makes the wife of the testator his "universal (15) legatee," except in respect to the tract of land and small articles given to his father and mother; and that the legacy to his wife includes the slaves, horses, crops, etc., that the testator owned at the time of his death. What other sense can be given here to the words, "My real estate of all kinds, and my money, notes and accounts," than — My corporeal estate of all kinds, and my money, notes and accounts?
This, we are satisfied, was the meaning of the testator, and in looking at the cases we are gratified to find that there is nothing to force us to the conclusion that this man died intestate as to his slaves, horses, cattle, etc., which being present, and so forcing themselves on the attention, are the primary subjects for the payment of debts, and the first things ordinarily disposed of by will. Fraser v. Alexander, 17 N.C. 348, and Clark v. Hyman, 12 N.C. 382, were cited on the argument by the counsel for the defendant as governing this case. In Fraser v. Alexander, there is an express direction to sell the negroes at private sale; that case has no application. In Clark v. Hyman, the conclusion is, that land is not included in the description, "because heirs-at-law are not to be disinherited, unless the testator's intention to do so is clear." In the present case the strain is to exclude from the general words slaves, horses, cattle, etc., which constitute the primary fund for the payment of debts, and are the subjects most ordinarily disposed of in wills. So also here, the cases are altogether different; and the construction of this will can not be controlled by the construction put upon that.
Indeed, words used in different wills are so different, and the circumstances of testators in regard to property and the objects of bounty are so various, that it is almost impossible to find one case that ought to govern another. Each must stand on its own peculiar circumstances, and in doubtful questions of construction something must be (16) yielded to the contemporaneous action of the parties concerned; as, in this case, an acquiescence for many years in the construction, by which it was taken for granted that the testator had given his whole estate, including land, choses in action, negroes, horses, etc. (except the small legacy to his father and mother), to his wife, subject to the payment of his debts.
The bill must be
PER CURIAM. Dismissed.