Opinion
(June Term, 1845.)
1. It is a general rule that gifts by will, to take effect at an indefinite period, will be considered as vested at the death of the testator; and if there be a tenancy in common, with a clause of survivorship, the death of the testator is, in general, the era to which the survivorship refers.
2. This general rule, however, is subject to be controlled by the intention of the testator, when it is clearly expressed in the will; but the Court will not, upon doubtful expressions, depart from the rule.
Cause removed from the Court of Equity of CHATHAM, by consent of the parties.
Badger for the plaintiffs.
Iredell for the defendants.
The bill is filed to procure a division of certain property bequeathed to the plaintiff, Eliza Alice, together with others, by the last will of Thomas Hill, deceased. By his will, Thomas Hill devises, as follows: "I give and bequeath to my four daughters, to wit, Maria, Margaret, Susan and Eliza Alice (or the survivors of them), to them and their heirs forever (at the death of my aforesaid wife), my plantation Hailbron, in the county of Chatham, and my house and lot on Market street, in Wilmington, to be equally divided between them. I am aware that I have only a life-estate in the said house and lot in Wilmington aforesaid it being maiden property, yet there being an understanding between my wife and myself, and trusting she will not object to this disposition — I have made it. Though in case she should think proper to give the aforesaid house and lot in Wilmington, as aforesaid, to any one of my sons, it is my desire that the lands bequeathed by me to him, should be equally divided among my daughters, heretofore mentioned, or to the survivor or survivors of them. It is my will and desire, and I wish it understood, that my wife have the entire use and benefit of my Hailbron Plantation, in Chatham aforesaid, during her life, as also my house at Hyrnham, and one hundred acres of cleared land, most contiguous to the same, if she should wish to (628) cultivate it separately." There is no other devise that bears immediately upon the question raised by the pleadings. The bill sets forth that, at the time of the death of Thomas Hill, the four daughters were alive, and that Maria intermarried with William H. Hardin, of Fayetteville, and Susan with William D. Mosely, then of this State, and that said Maria and Susan died during the lifetime of the widow, Mrs. Susannah Hill, each of them leaving several children, who are alive, and that Mrs. Hill has since departed this life. The bill claims, that by the terms of the devise to the four daughters, those only are entitled to its benefit, who were in being at the termination of the life-estate, and that as Maria and Susan died before the period, though alive at the death of the testator, their children are not entitled to any portion; but that it is to be divided between the plaintiffs and the defendants, Margaret, one of the daughters, having married the defendant, Levin Lane, and Eliza Alice, the plaintiff, John H. Haughton.
To this bill a demurrer is filed for the want of parties. The demurrer was, by the Judge below, sustained, and the bill dismissed, and the case brought here by appeal.
We concur with his Honor in opinion, that the bill can not be sustained. From no part of the proceedings do we learn, with distinctness, whether Mrs. Hill dissented from the will, nor is it at all important, it should have been stated, except as it might have sustained the statement made by the testator, and assisted in elucidating his intentions. It is not without some difficulty we have satisfied our own minds as to the true construction of the devise, to the four daughters, as to the time when it vests. It is a general rule, that gifts by will, to take effect at an indefinite period, will be considered as vested at the death of the testator. 2. Madd., Ch. 18; 2 Madd., 489; Gaskell v. Harman, and if there be a devise in common, with a clause of survivorship, as in this case, the death of the testator is, in general, the era to (629) which the survivorship refers. Cox v. Hogg, 17 N.C. 121. This general rule, however, is subject to be controlled by the intention of the testator, where it is already expressed in the will, but the Court will not, upon doubtful expressions, depart from the rule. Gaskell v. Harman, 6 Ves., 159; Innes v. Mitchell. Ib., 461. In this devise, there is no precise and definite period fixed by the words used, at which it shall take effect. And according to the rule cited, it vested in the four daughters, or to such of them as were alive at the death of the testator, but not to be enjoyed until the death of their mother, Mrs. Hill. Is there anything in the will to control this operation of the rule? On the contrary, do not the provisions of the devise show such to have been the intention of the testator? The words are, I give to my four daughters (and to the survivors of them) in a parenthesis, to them and their heirs, forever (at the death of my wife), etc. The most that can be claimed, in behalf of the construction which the plaintiffs contend for is, that it is left uncertain to which period the testator intended to limit the vesting of the devise, whether to that of his own death, or to that of his wife; and we have seen, that doubtful and uncertain expressions, from which an intention can only be inferred, are not sufficient to set aside the general rule. But we think, from these expressions, it was the intention can only be inferred, are not sufficient to set aside the general rule. But we think, from these expressions, it was the intention of the testator only to postpone the time when his bounty was to be enjoyed by the devisees. This construction is strengthened by the fact, that it is only through this devise, the widow can claim a life-estate in the Hailbron Plantation, and thereby interpose her interest between the vesting and the enjoyment of the remainder of the daughters. Again: the testator gives to his four daughters, his house and lot on Market street, in Wilmington, and then proceeds to say that it was his wife's property, and he had only a life-estate in it, but that there was an understanding between them touching it, and expressing a confident trust that she would not object to the disposition he had made of it. But he provides, if she should give the house and lot in Wilmington to one of his sons, that then, the land which he (630) had devised to that son, should be equally divided among his daughters, or the survivors of them. The devise to his sons of land are immediate; and it was evidently his intention, that, if his wife dissented from the will, and gave the house to either of the sons, the daughters should have the land given to that son, as the son himself would have had it, and the survivorship there mentioned is evidently confined to the time of his death. We take it for granted, as the bill is silent on the subject, that the widow did not dissent, but took under the will what was left her. We are therefore of opinion, that as all the daughters survived the testator, they all took a present vested interest, and upon the death of Mrs. Hardin and Mrs. Mosely, their children succeeded to their respective shares: That they have an interest in the fund sought to be divided, and ought to have been parties to the bill.
The demurrer is sustained, and the bill dismissed, and as we are satisfied, that the bill was brought simply to ascertain to whom the property belonged, no costs are allowed to either party; each will pay his own costs.
PER CURIAM. BILL DISMISSED.
(631)