Opinion
December Term, 1852.
However the general rule may be, both here and in England, as to whether a will and codicil, when admitted to probate as one instrument, must be so construed, yet this Court will not, in determining the particular case before it, overlook the fact that the testator calls the second paper a codicil, and that the bill and answer so designate it.
Where a testator by his will directed his slaves, consisting of a mother and her children of various ages, to be removed in as short a time as practicable, and with the intent to a permanent settlement in some State or country where emancipation was unrestricted, and there to be entirely emancipated, and also made provision for their subsistence and education; and eight years thereafter, made a codicil and republished his will, and gave to trustees a house and lot in New Bern and certain personal property, including household furniture, and a cow and calf, upon trust that they should permit, the mother to use, occupy and enjoy the same during her life, and at her death, to surrender up the estate to the other slaves: — Held, first that this provision indicated a change of mind of the testator, and his intention that the mother should reside on the lot — so as to revoke the provision of the will for her removal; and secondly, that as the testator had thus evinced a disposition to evade the law as to the mother, it ought to appear by the codicil, that he wished the fate of the children to be different from hers, or it must be presumed he intended that they also should remain.
THIS cause was removed from the Court of Equity for CRAVEN, at Spring Term, 1851; and came on at this term, upon a petition to re-hear the decretal order made therein, at December Term, 1851, of this Court. The following is the case, as stated by Chief Justice RUFFIN, in delivering the former opinion of the Court — ( 43 N.C. 70):
Moore, for the rehearing.
J. H. Bryan and Miller, contra.
"William S. Morris, of New Bern, made his will on 15 March, 1831, and therein appointed the defendant Lane the executor, and gave to his executor all his estate, except a negro woman named Patsy, and her three children, Harriet, Albert and Freeman, in trust for the following purposes: First, to sell the same and collect the proceeds and other monies due to the testator. And, secondly, that as soon after my decease as practicable, and at all events within a year thereafter, my executor remove beyond the limits of this State, and with the intent of a permanent residence, to some State or country, where emancipation is unrestricted by law, the said Patsy, Harriet, Albert and Freeman, and there cause them to be entirely emancipated. Thirdly, that my executor shall apply one-half of my money, debts due me, and the proceeds of sales before directed, as a fund wherewith to effect the removal and emancipation (103) as aforesaid, of the said Patsy, Harriet, Albert and Freeman, and to provide for them, after emancipation, in such manner and form as my executor shall judge best, as the means of their education, improvement and comfortable subsistence." And fourthly, that the other half be applied in certain other legacies.
"By a codicil, dated 30 May, 1838, the testator expressly republished his will which, he says therein, was written by Judge Gaston, and appointed Hardy Whitford and John L. Durand executors; and he `devised to them, or the survivor of them, my piece of ground, with the improvements, on the west side of Craven street, between, c., and also my household and kitchen furniture, my cow and calf, and ten shares of the capital stock of the Merchants' Bank of New Bern; to hold said real estate in fee simple, and said personal property absolutely, in trust nevertheless to permit my woman Patsy to use, occupy and enjoy the said piece of ground and improvements, and said furniture, and cow and calf, and to have the dividends of said Bank stock, during the natural life of said Patsy, and after her decease, in trust to surrender up said real or personal estate to Harriet, Albert and Freeman, the children of said Patsy, to be held by them in absolute property. Item, I desire my executors or the survivors of them to sell the lots, Nos. 83 and 67, in the town of New Bern, at public auction; and of the proceeds of the sale I give unto William Henry Morris, son of said Harriet, and grandson of my woman Patsy, one thousand dollars' — giving the residue of such proceeds to certain other persons.
"The testator died in 1848, and Lane and Durand, the only surviving executors, proved the will. The bill was filed against them in 1850, by the legatees named in the will, other than the negroes, and by the heirs and next of kin of the testator for an account, and payment of the legacies, and the distribution of the surplus undisposed of; and praying that the dispositions for the emancipation of the slaves and for provisions for them, may be declared unlawful and void, and that a trust in regard to the real estate may be held to result to the heirs, and of the personal estate to the next of kin.
"The answer of the executors and trustees states, that (104) the boy Albert died before the testator; and that `in the year 1828, the testator carried the slaves Harriet and Freeman to the State of Pennsylvania, and there caused proceedings to be had for their emancipation, and did, according to the laws of Pennsylvania in such cases provided, emancipate and set free, as he was there advised, the said slaves, and then returned with them to his former residence in this State; and that from thence until his death the said Freeman and Harriet were in his possession and use: And that, being advised after his return that the said proceedings were irregular and contrary to the policy of the laws of this State, and that said emancipation was void here, and would probably be so declared at his death, the testator, under the advice of Judge Gaston, executed his will in 1831, and subsequently thereto, the boy William Henry was born, who is mentioned in the codicil, as the child of said Harriet.' The answer submits whether under these facts Freeman and Harriet were not duly emancipated, and whether, therefore, William Henry was not free by birth.
"The answer further states `that within the year after the testator's death, and before the filing of the bill, the defendants removed the negroes Patsy, Harriet and Freeman to the State of Pennsylvania, with the intent of a permanent residence in that State — the same being a State in which emancipation is unrestricted, and there caused them, the said Patsy, Harriet and Freeman, to be entirely emancipated. And in that they say they did as they were advised, and as they believed in the faithful discharge of the trust reposed in them by their testator, it was their duty to do; and that if any other thing remains or is necessary to perfect the execution of said trust, they are willing and ready under the order and direction of the Court, to perform the same.' The answer then states the application of part of the funds of the estate to the removal and subsistence of the three negroes, Patsy, Harriet and Freeman, and the payment of two years' rent of the house and lot to Patsy."
This is a petition to rehear a decretal (112) order made in this cause, at the December Term, 1851, of this Court. The parts of the decree complained of, are those wherein the Court declares, "that the codicil to the will of 1831, set forth in the pleadings, and exhibited in the cause, operated so as to revoke such of the provisions of the will providing for the emancipation of the slaves, as might have been lawfully carried into execution, inasmuch as it provided for their residence in this State, in a condition and state contrary to our laws and policy; and thereupon adjudges that the negroes Patsy, Harriet, Freeman and William Henry Morris, were still slaves, and belonged to the estate of said testator, and with their increase, if any, were to be accounted for by the defendants as executors:" And wherein the Court further declares, "that the said bequests for the emancipation of the said slaves being void, they belonged to the plaintiffs, who are the next of kin; and that the devise and bequests of property of every kind, both real and personal, in said will to said slaves, or in trust for their benefit, were void, and (113) resulted to the said heirs at law and next of kin of said testator, and that the same, with the profits and interest accrued and accruing thereon, were to be accounted for by these defendants, as trustees, to and with the said plaintiffs."
The question raised upon the petition to rehear have been elaborately argued before us by the counsel on both sides. We have given to the arguments a full and mature consideration, but yet without being able to discover in the decretal order any error of which the petitioners have a right to complain. A will is an instrument by which a person makes a disposition of his property, to take effect after his decease; and which is, in its own nature, ambulatory and revocable during his life. Jarman on Wills, 11. A codicil is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as a part of, a testament — being for its explanation, or alteration, or to make some addition to, or substraction [subtraction] from, the former disposition of the testator. 2 Black. Com. 500; Williams Ex'rs. 8. In the construction of wills, the leading and controlling object is to ascertain the intention of the testator; and in order to accomplish this purpose, technicalities may be disregarded, and irregularities of form overlooked. The same rule applies to a codicil, so far as the construction is confined to itself; but so far as it affects the will to which it is a supplement, the rule is, that it may vary, by adding to, or taking from the will, but it is not wholly to supplant it. Jarman on Wills, 160. In the construction of wills, it is said too, that there is a difference between inconsistent provisions when found in the body of the will itself, and when found in the will and codicil, arising from the fact that in the former case, both provisions have operation from one and the same act of publication, while in the case of the will and codicil, the provisions contained in the codicil necessarily modify or revoke those inserted in the will. But it is contended for the petitioners, that here the will and codicil were proved as a will only; that the decision of the probate Court is conclusive, as to that fact upon the Court, of construction; and that, therefore, they are to be construed as one instrument. However this may be in England, or in other cases in this State, as to which we do not determine, we do not see how we can, in this case, overlook the fact that the testator himself calls the second instrument a codicil; the bill states it to be a codicil, (114) and the defendants in their answer admit that it is so. But, notwithstanding this, we agree with the counsel that the plain intent, apparent in the will, that the slaves should be sent abroad to be emancipated, ought not to be defeated by any doubtful intent, that they should reside in this State, to be extracted from the codicil. We agree with him further, that where two intents appear in the same instrument, one lawful and the other unlawful, the former is to be adopted. But we cannot apply the rule to a case, where the intention, if a plain one, is contained in an instrument whose office it is to vary a former one. We agree still further with the counsel, that a testator is to be presumed to know the law of the country; but we cannot say that, if so knowing it, he manifestly attempts to evade it, his unlawful attempt is to be overlooked, for the purpose of carrying out a previously expressed lawful intention. Such a rule would have saved the Court from the disagreeable necessity of deciding the cases of Haywood v. Craven, 4 N.C. 360; Pendleton v. Blount, 21 N.C. 491; Lemmonds v. Peoples, 41 N.C. 137; and Sorrey v. Bright, 21 N.C. 113; all which were attempts to set slaves free, in evasion of the settled policy and laws of the State.
With these admissions, we proceed to the inquiry whether the codicil, in the case under consideration, discloses a clear, plain, unmistakable intention of the testator, that his slaves should, notwithstanding his declared purpose to emancipate them, continue to reside in this State. The counsel for the petitioners contends that he does not; that the only term used by him, which creates any difficulty, is the word "occupy," and that that word does not necessarily mean what is technically called a possessio pedis. We think the counsel has succeeded in showing, that it is barely possible the testator might have intended the slaves to reside abroad, while enjoying the benefit of the property devised and bequeathed to them. He certainly has not succeeded beyond showing such a possibility. But we do not consider that to be the rule for ascertaining a testator's intentions. Ordinary words found in a will are to be taken in their ordinary acceptation. Technical terms are to be understood in their technical sense, unless the context shows that the testator used them in a different (115) sense. Here the testator gives a certain piece of ground, with the improvements, in the town of New Bern, his household and kitchen furniture, and his cow and calf, and ten shares of stock in the Merchants' Bank of New Bern, to the petitioners, to be held in trust "to permit his woman Patsy to use, occupy and enjoy the said piece of ground and said furniture, and cow and calf, and to have the dividends of the said Bank Stock, during the natural life of the said Patsy," c. He then directs certain other lots to be sold by his executors, and of the proceeds of the sale, he bequeathed to William Henry Morris, a son of Harriet, and grandson of Patsy, one thousand dollars. We ask seriously, whether one man out of a hundred would suppose that Patsy, a woman, was intended by the testator to reside in Pennsylvania, or any of the other free States, and yet "use, occupy and enjoy a house and lot, household and kitchen furniture, and a cow and calf, situated in the town of New Bern in this State." We answer confidently, that he would not. Nor will it help the construction, to say that the trustees were bound to sell the cow and calf, for the reason that they were given to Patsy for life only, with remainder over to her children. We cannot presume that the testator intended a sale; because, if so, we cannot see why he did not expressly direct it, as he did with regard to the lots out of which William Henry Morris's legacy was to be paid, and as he did with regard to all his estate in his will. We are bound, therefore, to declare our opinion to be, that the testator intended Patsy to reside in the town of New Bern, and there to occupy the house and lot, and use and enjoy the furniture, and the cow and calf.
But the counsel for the petitioners contends that, supposing this to be the proper construction with regard to Patsy, it does not apply to her children, Harriet and Freeman, and her grandchild William Henry Morris.
If the clauses in the codicil, relating to the children, had been separate and distinct from those which apply to their mother, we might perhaps be justified in putting a construction upon it more favorable to them. We admit that the terms employed by the testator do not so necessarily imply a residence in this State, as in the case of the mother. But neither (116) the will nor codicil any where shows an intention that they should be separated from their mother, and we think, that as the testator has evinced a disposition to evade the law of the State in relation to her, there ought something to appear in the codicil, that he wished their fate to be different from hers. In the absence of any such intention disclosed by either instrument, we feel bound to hold that the testator meant that the children should reside with their mother, in the town of New Bern. That being so, the result is, that the bequest for emancipation has failed, and the slaves mentioned in the pleadings, together with the property devised and bequeathed in trust for them, belong to the heirs at law and next of kin, and the petitioners must account for them accordingly.
We must declare that there is no error in the decretal order in the matters alleged, and the petition must be dismissed with costs.
PER CURIAM. Petition dismissed.
Cited: Joiner v. Joiner, 55 N.C. 71; Feimster v. Tucker, 58 N.C. 72; Gossell v. Weatherby, Ib., 52.