Jones v. Earle

Chambers, J., delivered the opinion of this court. In this, as in every other case in which a will is to be construed, the great object is to ascertain, from the face of the paper, the intention and design of the testator; which is to be carried into eifect, unless opposed by some principle of positive law. The will and the codicil constitute one instrument; and the codicil revoking, in terms, a portion of the will, has the eifect to republish the will as of the date of the codicil, in respect to all parts of the will not revoked by the codicil either in express terms or by a bequest or devise so entirely inconsistent with the terms of the will, as to make it impossible to give effect to both. The terms of this will are plain" and perspicuous. In the contingency which occurred, and was apparently anticipated by the testator, that is to say, the survivorship of his wife, without children, she would have taken an interest in all his negroes during her life, or until they should severally arrive to the age of forty years, at which age they were to be successively manumitted by the trustees. The will made no provision in regard to such as should abscond from service, nor any distinction between such as should be faithful and such as should be disobedient. The existing provisions of our laws, however, have made some distinctions on the subject. If any one of these negroes had absconded from the service of the legatee, the courts, on her application, would have extended the term of service of such negro beyond the age limited by the will for a period sufficient to reimburse to her the loss. of. his service, and all cost and expense in re-taking him. That additional service would have enured exclusively to her advantage. The codicil indicates that the testator was not content with this sanction for the fidelity of the negroes, and its main design seems to be to secure their services to his wife for her [401] life, and then to have them liberated. The codicil is obviously written with less professional skill, but we think it developes the intent of its execution. It revokes in explicit terms that portion of the will “which manumitted his servants as they severally arrive at the age of fortyand this manifestly because it opposed his wish, which he, in the same sentence, proceeded to declare, by adding that he “does now give and devise all his said servants to his wife, for and during her natural life, and after her death then said servants to be free.’’ The will carefully excepts the negroes from the other property whenever it is spoken of as passing beyond his wife and children, if any. All the interest in the negroes which is bequeathed at all is, by the will, given to the wife and children, and by the codicil to the wife alone, and in every instance where other legatees are necessarily named they are expressly excepted as not to be included in the bequest. With the evidence furnished by these facts it would seem difficult to suppose the clause in the codicil, for the punishment of fugitive servants, designed for the benefit of those other legatees. It is however contended that a more general intent of the testator will be defeated by any other interpretation. But we do not perceive that the least violence is done to any such general intent. If indeed there be assumed a general intent to give all the property after his wife’s death to the other legatees, that would be defeated; but this is assuming the precise matter of controversy. We regard the leading intent of the instrument to be, that his wife should enjoy all his estate for her life, and that after her death the other legatees should enjoy it all except the negroes, and this will not be deranged or defeated with regard to any thing else except the particular specific article of property which is to be disposed of according to specific directions. It is no objection to a bequest or disposition of one item of property, that the testator designed all the rest of his estate to go in a different direction. It is only where, by gratifying a particular intent as to the part, you defeat a more general and more important disposition of other parts, that the particular or minor intent must, yield. Where both [402] may be gratified there is no conflict, and consequently no necessity to yield either. Various parts of the will, we think, indicate a particular intent to confine to Mrs. Jones the whole benefit which, by the will, is disposed of, either for the services of the negroes or the proceeds of their sale. By giving effect to this intent we do not disturb any purpose of the will to give to the wife a life estate in every thing else than the fugitive slaves, and to the other legatees the whole personal estate bequeathed to them after the wife’s death. It has been strongly urged that the bequest in relation to the negroes is to he regarded as a legacy, and that the forfeiture of freedom and sale defeats its operation and causes it to lapse and fall into the residuum of the estate, and then pass, with other property, to the trustees. We cannot so regard it. The idea of a lapsed legacy can only be connected with some thing or object which, failing by some cause to reach the legatee, is received by some other person, generally the residuary legatee, if there be one. What is the object or thing in this case? Not the freedom of the servants, because that cannot pass to a residuary legatee; nor the services of the servants, because they were never bequeath'ed to a specific legatee who is not capable of taking. The fugitive negro was to be sold, and the immediate contest is, to whom the proceeds belong. If these proceeds can be regarded as a lapsed legacy it must be in consequence of the failure of a previous bequest of them. But that previous bequest is the precise matter of inquiry, and if ascertained, determines the difficulty, not by reason of its being a case of lapsed legacy, but because, finding the first legatee, we find one capable of taking. Again, we cannot regard the residuary clause relied on as capable of passing any interest in these fugitive slaves, even if it could be considered as a case of lapse legacy, inasmuch as the will has so carefully and repeatedly excluded the negroes from the residuum, which he designed to pass to his collateral relations, by saying, in so many words, in not less than four different instances, when referring to his personal estate, “except my slaves.” [403] Being of opinion; for these reasons, that the whole interest in the negroes sold was given to the appellant, it is quite tin • necessary to examine the various other points raised in the argument. Let the judgment be reversed, and judgment be entered for appellant for costs. JUDGMENT REVERSED, Archer, J», dissented.