Opinion
(December Term, 1845.)
1. A testator bequeathed to his wife a certain slave for her life, and, after her death, the slave to be sold, and the issue of the slave, together with the money arising from such sale, to be equally divided among all his children "that are then living": Held, that the issue of such of the children as died during the lifetime of the legatee for life took no interest under this bequest.
2. The word "Children" in a will sometimes, but only under peculiar circumstances, is construed to mean "grandchildren"; as where the meaning of the testator is uncertain, and the bequest must fail unless such construction be given.
Cause removed by consent from the Court of Equity of GUILFORD at Fall Term, 1845.
Morehead for the plaintiffs.
Kerr for the defendants.
The bill was filed to obtain a construction of the will (103) of James McMurray. By his will, the testator, after giving to his wife some perishable property, bequeaths as follows: "I also give and bequeath to her my negro girl Mary, to be enjoyed by her during her natural life, and at her death, I allow the said negro to be sold, and her issue, if she should have any, and the money arising from the said sale, to be equally divided among all my children that are then living." At the time of his death, James McMurray left seven children surviving him, two of whom, to wit, Jane, who intermarried with William Denny, and Polly, who intermarried with William Doak, died before the widow, the tenant for life. The plaintiffs are the children of Jane. The widow is dead, and the bill claims that the plaintiffs, the children of Jane Denny, are entitled to one-seventh part of the proceeds of the negro Mary and her increase, as standing in the place of their mother, and representing her in the division of the property.
The claim of the plaintiffs rests upon the ground, that the bequest to the children, after the death of the widow, was a vested remainder, and vested in all the children of James McMurray, who were alive at his death; and that, consequently, it made no difference at what time any of the children might die, whether before or after the falling in of the life-estate. The testator seems to have been aware, that questions of that kind had before then arisen upon the construction of wills and entangled and perplexed the settlement of estates, and has clothed his intentions in language that can not be mistaken. The intention of the testator is the governing rule in the construction of wills, upon the principle, that the law accords to every man the right to dispose of his property after his death, as he shall please. If, therefore, his intention can be (104) ascertained from the will, and it contravenes no rule of law, that intention shall be carried into effect. It sometimes becomes very difficult to ascertain what is the true meaning of a will; and the courts have been compelled to adopt various rules, as indicating the will of the testator, which in such cases will be observed. Here there appears to be no difficulty in ascertaining the wishes and design of the testator. The remaindermen are such of his children as shall be alive, at the time the life-estate falls in. The words are precise — "to be enjoyed by her (his widow) during her natural life, and at her death, etc., to be divided among all my children, that are then alive." The testator does not choose to leave anything to speculation. He not only fixes the time at which the property shall be enjoyed, but by whom. It is impossible, by authority or argument, to make his meaning more apparent, than he has himself done; and the will furnishes abundant evidence, that the phraseology used was not lightly nor ignorantly adopted. In the clause of his will next succeeding, he gives to his wife the remainder of his lands, not previously disposed of during her life, etc., remainder to his son, John McMurray, if he is then living, "but if he shall die before that time, the land previously given to his wife for life, etc., is to be sold, and the proceeds to be equally divided among all my children then living." In a subsequent clause he directs, that certain property shall be put into the possession of his wife, upon her giving bond, etc., and, if she declines taking it upon the conditions specified, then it is to be sold, and, after payment of his debts, "to be equally divided between my wife Elizabeth McMurray, my son John, my daughter Uphia, and my daughter Hannah." And, again, in the succeeding clause, he leaves a negro man to his wife for ten years, to assist in raising his youngest children, and, at the expiration of that time, to be sold, and the money "to be equally divided between my wife, and my children that are then living." It is manifest the testator (105) well understood the meaning of the words he used, and that he varied them, as occasion required, to meet his wishes in the disposition of his property. The objects of his bounty were his own children; and he had a legal right to dispose of his property as he chose.
We have examined the authorities to which our attention has been directed. There is nothing in them, to change the view we have taken of the case. They only prove that the word "children"; may, under peculiar circumstances, mean "grandchildren"; as where the meaning of the testator is uncertain, and the bequest must fail, unless such construction be given. That is not the case here. The bill must be dismissed with costs.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Lee v. Baird, 132 N.C. 759.