Dugans v. Livingston

Ryland, J., delivered the opinion of the court. Jerry, John, Thomas Cox and Noah George Dugan brought their suit, in the circuit court of Washington county, against Thomas R. Livingston. The plaintiffs were children of Stephen Dugan, deceased, and the suit was for a negro boy named Toney. The defendant claimed under Catharine Dugan, (the widow of said Stephen Dugan, deceased) one sixth part of said negro. Matilda Maness and her husband, Pleasant Maness, on their application, were made parties to the suit, and filed their answer, claiming one sixth or a child’s part of said slave. The following facts appear by the record: Stephen Dugan made his will on the 17th of September, 1839, and died in January 1843. At the date of his will, he owned but one slave, and that was the boy Jack, mentioned in the will; he also owned cattle, horses, hogs, sheep, oxen, [233] &c. That after the date of the will, he acquired a negro woman and child, which, with the boy Jack, he sold. He then purchased another woman and child; that he sold the woman and kept the child, and this child is the boy, Toney, sued for. That Stephen Dugan left five children — the four sons, the plaintiffs, and Matilda Maness, and that Catharine Dugan is his widow. The will of Stephen Dugan is as follows, leaving out the formal commencement: 1st. My wife Catharine will enjoy the use of my place, where 1 now live in Richmond township, county and State aforesaid, containing about four hundred and forty acres more or less, for as long as she remains a widow. “2d. My wife Catharine will be also entitled to as much of the stock as will do for the support of my four children and herself, that is to say, Jerry, John, Thomas Cox and Noah George, the said stock will go to my four children, with their increase, after the death or marriage of my said wife. “3d. All the balance of my perishable property, excepting my negro boy Jack, will have to be sold according to law, and the proceeds from it equally divided amongst my four first mentioned children, that is, for their own use, to school them, and then after they are of age divided equally. “4th. My negro boy Jack is to be hired out, until my youngest bey, N. George, becomes of age, and then he will be sold, and the money divided equally between my four children; the wages of the boy will also be for their use. '“5th. That I give to my'daughter Matilda five dollars cash out of my estate. “6th. After my wife Catharine’s death or marriage, all my land and farm first mentioned is to be divided equally amongst my four children, Jerry, John, Thomas Cox and Noah George. “7th Appoints executors. Signed and sealed 17th September 1839.” The question in this case is, did Stephen Dugan die intestate, as to the boy Toney, and if so, will Toney belong equally to all the children and the widow, or whether he passed to the plaintiffs in the 3d clause of the will under the terms “perishable property,” and so-would belong to the four boys, in exclusion of the widow and the daughter? The plaintiffs maintain the latter proposition and the defendant the former. Several instructions concerning the construction and rules for interpreting wills were asked by the defendants, some of which were given and others refused, but as the will must be construed by this court, it is not necessary to insert here the instructions. The case was tried by the court, and verdict and judgment given [234] for the plaintiffs. The defendants moved for a review and new trial, which was overruled, and the case comes now before us by appeal. Nothing is said about the right or ability of the plaintiffs to maintain this action, or about the settlement of Dugan’s estate finally, or the payment of his debts. These matters were not brought before the consideration of the court below, nor will this court notice them further. The words “perishable property” are not generally used in our legislation, as including slaves: “personal property” is the phrase generally intended to embrace them, when they are not otherwise mentioned expressly as “slaves” or “negroes.” See the act concerning administrators and executors in 1835 and 1845, passim. But in the will before us, it is plain, that the testator supposed these words “perishable property” did include and embrace his negroes, for he expressly excepts “Jack,” the only slave he then owned, from the operation of the third clause of his will, by which he directs, that “all the balance of my perishable property excepting my negro boy Jack, will have to be sold, according to law, &c.” Now the exception of the negro boy Jack, in this clause, forces on my mind irresistably, the meaning that the testator gave to the words perishable property: He believed that the negro Jack would be included under these words, and therefore he excepts him from their operation. Nor is there any positive legal violation in giving this meaning to these words. This, then, being the testator’s understanding of the words “perishable property,” it will be adopted by this court in construing the will, “without resorting to lexicographers to determine what the same words may mean in the abstract: or, to adjudicated cases to discover what they have been decided to mean under different circumstances.” See Carnagy & Wife vs. Woodstock and Mackey, 2 Munford, 239. It is not the opinion of this court, that the boy, Toney, can be made to take the place of Jack and be disposed of under the will as Jack would have been, had he remained the testator’s at his death instead of Toney; nor do we consider that the testaror died intestate as to the boy Toney. Having made his will, it would be with great reluctance that the courts would declare he died intestate, as to any property that can be reasonably included under the provisions and by the terms of the will. According to our understanding of the use of the words “perishable property,” made by the testator in this will, the negro boy Toney passed with the perishable property to his four sons, the plaintiffs. This being the construction placed upon' the will by the court below, [235] we see no cause to reverse the judgment. The other judges of the court concurring, the judgment below is affirmed.