Opinion
(December Term, 1858.)
A bequest, simply of a female slave and her increase, in a will, made before the enactment of the Revised Code, passes the mother only, and not her children, born before the will was made, or between that time and the death of the testator.
But where a slave had been put in the possession of one of the testator's children, and had increase before the will was made, and that fact is recited in the will, a bequest of such slave, and her increase, even before the Revised Code, was Held to be a confirmation of the previous parol gift, and to pass both the mother and her increase.
The coupling together, in a will, by the use of the conjunction "and," of a slave and her increase, mentioned as having been previously given, with one not so mentioned, will not have the effect of bringing both bequests within the exception to the general rule.
The state of the testator's family and property, are not considerations of weight in arriving at the construction of a will, where the language is plain, and the meaning well established.
Note. — The rule of construction, as to the increase of slaves, is altered by Revised Code, ch. 119, sec. 27.
CAUSE removed from the Court of Equity of Wilson county.
Strong and Dortch, for the plaintiffs.
Howard and Lewis, for the defendants.
The bill was filed by the plaintiffs, as executors of Thomas Williamson, praying a construction of the following clauses of his will: "2nd. I give and bequeath to my beloved daughter, Tempy Fulgham, one negro girl, named Mary, now in her possession, and her increase, if any; also, one negro girl, named Bethany, to her and her heirs forever.
"Item 3rd. I give and bequeath to my daughter, Mourning Peele, four negroes, namely, Cherry, Merica, Charity and Washington, and their increase, if any, to her and her heirs forever.
"Item 4th. I give and bequeath to my beloved daughter, Rhoda Williamson, three negroes, namely, Ally, Arnold and Randal, and their increase.
"Item 5th. I give to my beloved daughter, Sidney Boyett, three negroes, namely, Julia, Isabel, and Daniel, and their increase, if any, to her and her heirs forever.
"Item 6th. I give and bequeath to my executors, hereinafter named, for the sole and separate use and benefit of my daughter, Mary Renfrow, the property I have heretofore put in her possession; also, I give to my executors, for the separate use and benefit of my daughter, Mary Renfrow, one tract of land, lying in Johnson county, which I purchased of Harriss Renfrow, containing about seventy-five acres; also, I give to my executors, for the benefit of my daughter, Mary Renfrow, the sum of four hundred and sixty dollars, in money, and it is my will and desire, that my executors shall let my daughter have said money as she may need the same, for the support of herself and family; the last bequest is intended to be used by my executors, for the sole use and benefit of my daughter, Mary Renfrow, and no other;" with a general residuary clause.
The plaintiffs, Garry Williamson and Jesse Fulgham, were appointed executors and qualified.
The girl, Mary, mentioned in the second clause of the will, was put into the possession of the plaintiff, Fulgham, the husband, and his wife, the legatee, Tempy, when she was about five years old, and has remained in their possession ever since. She had one child before the making of the will, which has also remained in their possession ever since its birth. The girl, Bethany, was put in the possession of Fulgham and his wife, by the testator, after his will was executed, together with her first child, named Amos, who was born after the making of the will, and before the testator's death. The woman, Bethany, had another child before the death of the testator, both of which children, were in their possession when the testator died. Upon these facts, is predicated the prayer, by the executors, for instruction, whether they shall deliver the increase of the women, Mary and Bethany, or any of them, to the legatee; or whether the same falls into the residuum.
The female slave, Cherry, given to Mourning Peele by the 3d item of the will, was put into her possession, and that of her husband, William Peele, when about four years old, and had one child before the making of the will, and three others afterwards, before the death of the testator; the woman, Charity, had one child before the will was made, and one afterwards, before the death of the testator. The executors ask to be advised whether, under these bequests of Cherry and Charity, and their increase, their children, or any of them pass. The legatee, Mourning Peele, died about two years before her father, leaving children who are made parties defendant. The executors ask to be advised whether the children of Mourning Peele succeed to their mother's legacies under the 3d item; also whether they came in for their mother's share of the residue.
The girl, Ally, given to Rhoda Williamson, had two children before the will was made, and the same question is asked as to them.
The slave, Julia, given to Sidney Boyett, had three children before the will was made, and two afterwards, before the testator's death, and the same inquiry and prayer for advice is made as to them.
The executors ask whether Mary Renfrow is entitled to keep possession of the land and other property given for her use, and that of her family, and whether in paying to her the pecuniary legacy, they are restricted to the interest arising from the sum given, or whether, if her necessities require, they may pass to her part of the principal.
The surviving legatees, and their husbands, and the children of Mourning Peele, were made parties, who all answered, but their answers did not vary the state of the facts above set out.
The cause was set for hearing on the bill, answers, and exhibit, and sent to this Court, by consent.
All the questions which have been raised upon the construction of the will of Thomas Williamson, deceased, and upon which we are asked to declare an opinion, may be answered, without much difficulty, by the aid of the previous adjudications of the Court.
The first enquiry relates to the second item of the will, wherein the testator gives to his daughter, Tempy Fulgham, "one negro girl named Mary, now in her possession, and her increase, if any, also one negro girl named Bethany, to her heirs forever." The girl, Mary, had been put into the possession of his daughter and her husband, by the testator, some years before his will was made, and had had a child before that time; but Bethany, with a child named Amos, was delivered to the daughter after the will was executed, and had another child before the testator's death. The question is, did the children pass with their mothers to Mrs. Fulgham? The general rule is clearly settled, that the bequest, simply, of a female slave and her increase, passes the mother only, and not the increase which she may have had before the will was executed, or between that time and the death of the testator. See Love v. Love, 5 Ired. Eq. Rep. 201, and many other cases. But if there be any expression in the will, showing an intention of the testator that such increase shall be included in the bequest of the mother, then the legatee shall take it. An indication of such intention may be inferred from a reference in the will to the slave as having been previously given to, or as being in the possession of, the legatee. The bequest is then a confirmation of the previous parol gifts, and carries with it the increase as an adjunct or part of such gift. Bullock v. Bullock, 2 Dev. Eq. Rep. 307; Simpson v. Boswell, 5 Ired. Rep. 49; Woods v. Woods, 2 Jones' Eq. Rep. 420. From the authority of these cases, and the principle upon which they are founded, we are satisfied that the child of the girl, Mary, who is mentioned as having been in the possession of the legatee, passed, with its mother. With respect to the other girl, Bethany, there is no gift of her increase, and the only argument in favor of her children being included in the bequest of their mother, is derived from the use of the word "also," which, it is insisted, connects with her whatever of a like kind was intended to pass with the girl, Mary. The bequest of increase is a gift of something in addition to that of the mother, and when born before the death of the testator, does not ordinarily pass with the mother. On the contrary, as we have seen, it requires an indication of the testator, manifest in his will, that such is his intention, to enable the legatee to take the increase with the mother. The term "also" means only some other subject of gift besides what has been already mentioned, and can include only what is specified by name or description. If one subject only be named, or described, it cannot be extended to embrace two entirely distinct subjects, without the hazard of making the testator much more liberal than he intended to be. The mention of one subject without the other, when he has just before shown that he knew the difference between the two, leads more justly to the conclusion that he did not intend to embrace the latter. The children of the girl, Bethany, do not, therefore, in our opinion, pass with their mother, but fall into the residue to be sold and the proceeds divided according to the last clause of the will.
There is nothing in the third, fourth and fifth clauses of the will to take the gift of the female slaves therein mentioned, with their increase, out of the general rule, and the children born in the testator's life-time, do not belong to the respective legatees, but fall into the residue, to be disposed of as hereinbefore mentioned. The rule, referred to by the counsel, that we have a right to look to the state of the testator's family, and the condition of his property, in putting a construction upon his will, cannot be invoked when the language is plain and its meaning well established. The expression, "if any," subjoined to the word increase cannot make any difference, because it only expresses what would, if omitted, be necessarily implied, and it may apply to increase born after the testator's death, as well as those born before.
Before leaving this subject, it may not be improper to remark, that the will now before us was executed before the Revised Code went into operation, and therefore is not affected by the rule of construction prescribed in the 27th section of the 119th chapter of that code, to-wit: "that a bequest of a slave, with her increase, shall be construed to include all her children born before the testator's death, unless a contrary intention appear by the will."
Mary Renfrow takes a separate estate in the property devised and bequeathed to her in the sixth clause of the will, and the trustees may permit her to have possession of it, and use and enjoy it with her family; and as there is no clause of restraint, she is entitled, not only to the interest, but the principal of the money given her, should her necessities require it. See Harris v. Harris, 7 Ired. Eq. Rep. 111.
There is not the slightest doubt about the last question proposed to us. The children of Mourning Peele will stand in the place of their mother, and take the share of the residue to which she would be entitled, were she living. 1 Rev. Stat. ch. 122, sec. 15. The same provisions will be found in the Rev. Code, ch. 119, sec. 28.
The parties may have a decree for the settlement of the estate upon the principles herein declared.
PER CURIAM, Decree accordingly.