Eller v. . Lillard

MekeimoN, C. J. after stating the facts: We are not called upon, nor would it be proper, to interpret the will before us, or particular clauses of it, further than may be necessary in reviewing the judgment of the Court below in the respects embraced by the assignments of error. Our province is simply to correct errors of the Court below — not to go beyond that and interpret the whole'will, or determine the rights of devisees or legatees otherwise than as these may be involved in the assignments of error. The clear purpose of the testator was, first, to provide for his wife. Iiis further purpose, to have his wife and children share equally in his property, except as to specific devises and bequests, is very apparent. And, with this view, he intended that his grandchildren of his deceased children should respectively represent their deceased parent and take the part the parent would take if living. Indeed, in his will, just after the naming of his deceased children, and after each, her or his children, he expressly declares, “I mean the above-named heirs” (the heirs — the children — of his deceased children mentioned) “'are to have an equal share of my estate with the balance of my children — the share that the mother or father, if living, would be entitled to, viz., E. C. Lillard, A. L. Lide and A. E. Penn,” who were his *490 surviving daughters and only surviving children, mentioned awkwardly in this connection. And, to make such equality as to his surviving children and the children of his deceased children,, he intended that the surviving children and his grandchildren representing respective!}' their deceased parents, should account to and with each other for certain advancements which he specified in his will, so far as the same had been made at the time he executed it. Such equality in sharing the property of the testator by his children and grandchildren is confined to the general residue of his estate — it does not, in the absence of direction to the contrary, extend to and embrace specific legacies. A specific legacy implies that the particular thing — property-bequeathed shall go to the legatee just as given, including the amount or measure thereof. Starbuck v. Starbuck, 93 N. C., 183. Hence, as to the special legacies, the testator did not intend that the co-legatees should account to and with each other for advancements — he intended that these legatees should take the property so bequeathed just as he gave it — the law so implies in the absence of contrary intent expressed. And no such contrary intent is expressed. Indeed, in disposing of his general property — in that immediate connection — he directs that advancements be accounted for, thus showing his purpose to confine this direction to the residue of the estate. Hence, the objection that the legatees sharing in the specific legacy of the bank-stock, who had received advancements larger than others sharing in it, were not required to account for such advancements is unfounded. No objection was made that the grandchildren were allowed to share in the legacy, and the exception raised no question in that respect. The testator devises and bequeaths to his wife certain property specified, and, in addition thereto, “also 'a child’s share, equal with one of my” (his) “children, of all ihe property that is not disposed of otherwise in this will, to be hers absolutely and at her own disposal.” He makes no express *491 disposition of his property, real or personal, other than that specifically disposed of to his children, but he declares that “I mean the above named heirs” (certain grandchildren) “are to have an equal share of my estate with the balance of my children” (meaning his surviving children), “the share that the mother or father, if living, would be entitled to.” He thus impliedly disposes of the residuum of his property to his children and grandchildren, and expressly specifies advancements that certain of them, particularly named, must account for. This is substantially in harmony with the statule of distribution of estates, and it seems that he so thought and intended that it should be. His language as to his wife clearly implies his purpose that she shall have “a child’s share” of the residuum of his property — to put her on an equal footing with his children as to that, and he further points out and provides that a child’s share shall be ascertained by requiring his children to account for specified advancements made at the time he executed his will, and that might be thereafter made before his death. If the children were not required to account for advancements, as specified in ascertaining a child’s part to and with the widow, then she would not get “a child’s share, equal with one of my children, of all the property that is not disposed of by this will ” — she wrould not be on an equal footing with the children as to the distribution of that property. In ascertaining the intention of the testator, it is to be observed that all the provisions as to equality in sharing the property have reference to the residuum, and, in that connection, embrace the wife. It seems that the testator had in view the statute (The Coda, § 1483), which requires that children, shall account to and with the “widow of the intestate in ascertaining the child’s part of the estate.” We are> therefore, of opinion that the Court properly required the children to account to and with the widow for advancements, as specified in the will, in ascertaining her share of the residuum. Judgment affirmed.