Galloway v. . Carter

MeRejmoN, J., (after stating the facts). The will before us, to be interpreted, is orderly in its form, ' very clear and. intelligible — certainly in most respects — in its several provisions, and, of itself, affords evidence of an able and skillful draughtsman By it, the testator carefully disposed of all his large and valuable estate, embracing much real and personal property, certainly and exclusively to his own immediate family, consisting of his wife and seven children, thus manifesting a settled purpose to devote his property, as far as practicable, to persons of his own blood. It will be observed, that the testator first makes provision for his wife, and then for his children, severally, and in order, giving each, in severalty, certain lands in fee, besides slaves and other personal property. Having thus disposed of much the greater part of his property, he directs that certain lands, specified, be sold' — part of them on a credit of one, two and three years — -thus turning them and all his property, not specifically devised or bequeathed, into a cash fund, out of which he directs, first, that certain pecuniary legacies be paid to two of his daughters, named; secondly, *120 that each of his children be paid one thousand dollars; and thirdly, that the residue thereof be divided equally between and among his wife and children. These dispositions embrace all his property, and he then adds : My will further is, that if any, or either of my children, should die without leaving issue living at his, her, or their death, the share or shares of him, her, or them, so dying, (as well the accruing as the original share,) shall be, go over and remain to the surviving brothers and sisters, and the child or children of such of them as may be then dead, equally to be divided between them, share and share alike; but the children of my deceased child shall, in such case, represent their parents, respectively, and take in 'families.” It is this clause of the will that gives rise to the questions presented for our decision. The principal contention of the appellees is, that the testator intended that it should have application and operative effect only in case one or more of his children had died in his life-time, after the execution of his will; and that, as his daughter Mary S., now deceased, and under whose will they claim, survived him, her title to the property, devised and bequeathed to her, became absolute on the death of the testator. Construing the will as a whole, as we must do, we cannot accept the interpretation thus insisted upon, as the correct one. As contended by the learned counsel for the appellees, it seems to be settled — certainly in this State — that where the estate, created by the will, is defeasible, and the intention of the testator is doubtful — not clearly expressed — and the property itself is given, and not the mere use of it, and the time is not definitely fixed at which it shall be absolute, if there be any intermediate period between the death of the testator and that of the devisee or legatee, at which the estate may fairly, in view of the whole will, be considered absolute, this time will be taken as that intended by the testator; but if *121 there be no such intermediate period, and the time of his death, or that of the devisee or legatee, must be adopted, the former will be treated as the time so intended. This is so, unless there be words that forbid such interpretation, or considerations appearing from the will that clearly imply, or disclose, a different intent. The general rule applicable in such doubtful cases is, to construe the estate, whether vested or contingent, as absolute and indefeasible, rather than defeasible; and if it cannot be construed to be absolute in its creation, then t<> so interpret words and phrases implying such conditions as render the estate defeasible, doubtful as to the time of their operation, so as to render the estate absolute at as early a period as can fairly be done. Cox v. Hogg, 2 Dev. Eq., 121; Hilliard v. Kearney, Bus. Eq , 221; Biddle v. Hoyt, 1 Jones Eq., 159; Vass v. Freeman, 3 Jones Eq., 221; Davis v. Parker, 69 N. C., 271; Murchison v. Whitted, 87 N. C., 465; Price v. Johnson, 90 N. C., 592. But such rules of interpretation do not apply when, from the whole will — its terms, phraseology, several parts, provisions, conditions and their bearing upon each other, and just and reasonable implication arising thereupon- — -a different intention of the testator clearly appears. He might provide otherwise. Unquestionably, it is competent for him to devise and bequeath his property to his children, coupled— clogged — with the condition, that if one or more of them should die at'any time before, or after, his death, without issue then alive, then, and in that case, it should pass to and become the property of his or her surviving brothers and sisters. The law, for reasons of wise and sound policy, does not favor such a disposition of property, but it does not forbid it, and, on the contrary, when it appears that such is the purpose of the testator, it will uphold and enforce his purpose. Bullock v. Bullock, 2 Dev. Eq., 307; Fortescue v. Satterthwaite, 1 Ired., 566; Garlands. Watt, 4 Ired., 287; Biddle *122 v. Hoyt, 1 Jones Eq., 159; Motts v. Caldwell, Bus. Eq., 289; Webb v. Weeks, 3 Jones, 279; Vass v. Freeman, 3 Jones Eq., 221; Williams v. Cotten, Id., 395. The will, however it may dispose of property, not incon-sistentty with the rules of law and statutory regulations, will be upheld, and the intention of the testator must prevail. The law does not seek to mould or direct his purpose — on the contrary, it effectuates it as nearly as may be. Hence, it is no part of the object of rules of interpretation, such as those adverted to above, to direct, modify, or prevent the intention, but only to ascertain what it is, to the end it may become operative and effectual. Now, in our judgment, the testator of the will under consideration, intended, by the clause of it above recited, to render the estate and title of the property devised and bequeathed to his several children, defeasible, and to provide that, in case any one or more of them should die at any time after the death of the testator, without leaving issue living, at his, her or their death, respectively, the property so devised and bequeathed, including any that might have accrued under the clause, should at once, upon his, her or their deaths respectively, at any time, go over to, and become the 'property of, the surviving brothers and sisters, and the child or children of such of them as may then be dead, equally to be divided among them, share and share alike, the children of any deceased child representing their parents respectively, and taking as families. This, we think, sufficiently appears from the clause just referred to. It provides, “that if any or either of my children should die without leaving issue living, at his, her, or their death,” &c. These are comprehensive words, used in a broad sense — -they do not imply, simply, that if one, two, or three shall so die, but if any — several—an indefinite number, at least five— shall so die. This is made clearer by the further provision, in this connection, that then “ the share or shares of him or them, so dying, (as well the accruing as the original share,) *123 shall be, go over and remain to the surviving brothers and sisters, and the'child or children of such of them as may be then dead,” &c. The testator must have been a man advanced in life — he had a large family, seven children — and it appears from the will, that at least one of them was married, thus indicating that the children were not all very young, and the advanced age of the father. Is it probable— is it reasonable to infer, that he intended such provision to-apply to such of his children as might die in his, the testator’s, life-time? Reasonably, in the nature of the matter, did he contemplate that several of his children — perhaps as many as five — would have children, and die before himself, and he ought to provide for such a contingency? We cannot think so. To conclude that he did, would be to ignore the ordinary course of nature, in such respect, as well as the common experience and observation of men. Hilliard v. Kearney, Bus. Eq., 221, 231, 232. Moreover, if the clause refers to the death of children in the life-time of the testator, then the words of it — “ as well the accruing as the original share ” — could have no practical meaning or purpose, because, in that case, the devise and bequests would lapse and become inoperative, and under the will, the property would pass into and become a part of the residuary fund, and thus go to the surviving brothers^ and sisters and their mother. But, if the clause applies to such death after the death of the testator, then the words, “ as well the accruing as the original share,” would serve the important purpose of certainly keeping the whole property in the family of the testator — devoting it exclusively to the benefit of his children and their children, as far and as-long as he could. This, indeed, seems to have been his purpose. It cannot be said that the testator was inops concilii,. and therefore, could not know with accuracy, the legal effect of such provisions. The will, upon its face, shows the contrary — that he was well advised how to effectuate his purpose, and that it was skilfully and very thoroughly drawn. *124 Then, as the provision pf the clause last mentioned does not apply to such death of a child or children in the life-time of the testator, plainly, by its terms, it has reference and application to such death, after his death. At such death of a child, his or her share, including any accruing share, would go over, as provided. As the intention of the testator was that we have indicated, the argument, that his disposition of his property was unwise and inconvenient, and might result in injustice to some of his children, and has so resulted in the case of his daughter named, who died without ever having had issue, is without force. He certainly had the right to dispose of it as he did, whatever may have been his motive and whatever the consequences. It has been suggested, that the clause of condition and defeasance does not apply to all the devises and bequests of the will, but only to the bequests to be paid out of the fund to be raised from the sale of the land directed to be sold, and the personal property not specifically bequeathed. We cannot yield our assent to this view. There is nothing, it seems to us, to warrant such, or any restricted application. The clause appears separately from any other, at the end of the clauses disposing of all the property, and begins thus: “ My will further is”- — -that is, in addition to all the testator had provided — and then proceeds as follows: “ That if any, or either of my children, should die without leaving issue living at his, her, or their death, the share or shares of him, her, or them,” &c. What share? It is not designated or described in terms, by implication or inference, as the share of the fund last mentioned. There are no words implying such, or any restriction, in this respect. These bequests, in the clause granting them, are not designated as shares— nor are any of the devises or bequests so designated in the several clauses creating them. Nor can we conceive of any adequate reason for such restricted application. In the absence of terms or particular provision authorizing it, it is not probable, nor reasonable, as it seems to us, that the testator *125 would restrict the application to transitory pecuniary bequests, without some distinct provision for the purpose, and not to valuable devises, and bequests of slaves and other personal chattels, not at the time of the execution of the will so transitory. He would more likely apply such restriction to the devises and the bequests of slaves, but, as we have said, there is no such purpose expressed, and no apparent motive or purpose to make such restriction or distinction. If it be said, that it is not likely the testator would intend to restrict his children in the exercise of the power to dispose of the property given them, the answer is, he had the right to do so, and in very sweeping terms, he exercised that right, manifesting, apparently, a settled purpose to devote his property to persons of his own blood. When such purpose appears upon the face of the will, the mere fact that its provisions may be unwise, inconvenient, and not what most men would make, cannot be allowed to affect, or give direction to, to the intention expressed. Nor is it at all probable, that a testator who prepared his will so cautiously and intelligently, would have omitted some expression, as to snch restriction, if he intended it. As we have said, the clause in question appears as a separate paragraph at the end of the clauses of the will, disposing of all the testator’s property. In its terms, it is precise, apt, comprehensive, and thorough, for the purpose contemplated. There are no pertinent restrictive words — nothing appears to show that it was intended to apply to one class of gifts more than another. The term “ share ” is used without qualification. In its connection, it must mean share of the testator’s estate — his whole property disposed of by the will, in which whole, each and all of his children shared. By a child’s “ share ” was meant, his share of the whole — not his share of a part of the estate, else the testator would have said so. The clause is inserted in the will at the orderly and proper place, to apply to the whole of the property disposed of; it so applies in its terms, and nothing to the contrary appears *126 There is error. The judgment must be reversed, and further proceedings had in the action according to law. To that end let this opinion be certified to the Superior Court. It is so ordered. Error. Reversed.