Opinion
(January Term, 1867.)
Where a testator, in his will, recommended one to the humanity of his executors, and added that he left in their hands the interest on a certain fund for the support of the person so recommended during his life, and upon his death the surplus, if any, to go over to another: Held, that the clause was imperative, and gave to such person a right to a support for life under it.
BILL for an account and payment of a legacy under the will of Maxwell Chambers, filed to Fall Term, 1866, of ROWAN, and set for hearing on bill and answer at the same term, and transmitted to this court.
Boyden and Bailey, for the complainant.
Blackmer, for the defendants.
The complainant was a slave of Maxwell Chambers, deceased, at the time of his death, in 1855, and the defendants are the executors of the will of Maxwell Chambers.
The only point in the case was in the construction of clause 34 of the will. That clause is as follows: "I feel desirous to make ample provision for my poor old friendless woman, Lucy, as well as my old man, Peter; therefore rely on the humanity and tender feelings of my executors to have them well taken care of and kindly treated during the short time they will probably want it. I leave in the hands of my executors the annual interest as it becomes due on $1,500 of my Wilmington bonds, or so much of it as may be necessary," etc., "to support them during their lives, the surplus, if any, including the principal, $1,500, to go to the trustees of Davidson College," etc.
The only question as to which the counsel for the parties have asked our advice is, whether the language of clause 34 of (153) the testator's will is imperative, or only precatory. The counsel for the defendants say that if, in our opinion, it is imperative, the intention of the testator shall be carried out, without regard to any other objection that might be made to it, arising out of the plaintiff's condition as a slave at the time when the will went into effect.
The first sentence of the clause would seem to indicate the purpose of the testator to leave it as a matter of humanity, rather than of legal obligation, on his executors to provide for the wants of his slaves. But when we notice that in the second sentence he sets apart the interest of a certain fund for their support, directs its application to that purpose, and disposes of any surplus which may remain unexpended at their deaths, we must conclude that the intention was to impose it as a legal duty on his executors to appropriate such interest to the use of the objects of his bounty. We hold, therefore, the clause in question to be imperative, and that the plaintiff is entitled to whatever sum may be found necessary as an annual support during life. There must be a reference to ascertain what that sum shall be.
PER CURIAM. Decree accordingly.