Barbara Alexander v. . Peter A. Summey

Reads, J. The testator left a widow and four children. 'He gives first, $2,500 to his youngest son, Peter. He then .gives a legacy to his widow, and then divides the residue to his four children, including Peter share and share alike, his oldest son George to account for an advancement to him. The widow is dead, so that it would simplify the statement to say that he gives his youngest son Peter, $2,500, and then -divides the residue among all the,children including Peter. It is plain from this statement that the leading idea in the 'testator’s mind was to make all his children equal with an advantage to his youngest son of $2,500. The testator was old, and we are not informed that he was of more than ordinary intelligence, and as he was near death, and did soon die, we suppose that he was looking to the distribution of his estate, as it had for a long time been, and as it then was without reference to the casualties of the war, of which he'took no notice. But soon after his death, and before there -could have been a settlement of his estate, the slaves, which constituted the largest part in value of his estate, were •emancipated, and there was little left except the land, worth .•about $5,000. About half of that amount was required to pay debts, and *582 if the other half is taken to satisfy Peter’s legacy of $2,500, nothing will remain for the other children. Was such a result contemplated by the testator ? clearly not. And such a construction of his will would make him “sin in his grave.” And on the other hand, to give Peter his legacy in Confederate money, or its value, about $50, would be to “mock” the favorite of his bounty. The general rule is, that a legacy is payable in the currency of the country at the date of the will, but here we had no currency, Confederate notes haring become so far depreciated as not to deserve the name, therefore Peter’s legacy must be estimated at its nominal value in good money $2,500. Rut then it must abate so as to bear its share of the loss by emancipation of the slaves. It must be the same proportion to the estate, as it is now left in the hands of the executor, as it would have the whole estate, if it had not suffered the extraordinary casualty of emancipation. For illustration, if the estate would have been worth $10,000, without the casualty he would have been entitled to his legacy in full $2,500. If it is reduced by the casualty to $5,000, he must take but $1,250. The general and leading intention of the testator must prevail where it can be collected from the will itself; and particular rules of construction must yield something of their rigidity if necessary to effect this purpose. Lassiter v. Wood, 63 N. O. JR., 360. According to the construction which we put upon this will in order to carry out what appears to have been the leading purpose of the testator, it must (1.) be estimated what would have been the value of the whole estate, embraced in the residue before taking out Peter’s legacy, and to be divided after the payment of the debts and expenses of administering, if the extraordinary casualty, emancipation, had not happened. (2.) Estimate what proportion, $2,500 would have been of that sum. (3.) Ascertain the nett amount of the estate now in the executors hands after paying debts and ex *583 penses, and take out of that sum the same proportion for Peter’s legacy, and then (4.) divide the remainder into three equal parts among three children,including Peter, and leaving George out, unless George will come in and account for the advancements and in that event then into four parts. This view makes it unnecessary to answer the questions propounded specifically ? and we notice the case states that it is desired that this Court should construe the whole will. This will be certified to the end that there may be proceedings to ascertain the amount in the hands of the executor, and a satisfaction of the legacies in conformity with this opinion. The costs in this Court will be paid by the executor, out of the' funds of the estate. Per Curxam.