Opinion
(December Term, 1859.)
1. Where a testator bequeathed one-half of his whole estate to his wife absolutely, and after giving several other legacies, gave the undisposed of residue to several persons named, and then provided that "his wife's portion was to be taken off before the other distribution," It was Held to be the intention of the testator to give his widow one-half of the gross amount of his estate, irrespective of charges of any kind.
2. Where pecuniary legacies were given to slaves, it was Held that the amounts thus intended to be given away remained as integral parts of the estate for the want of a legal taker, and as such fell into a residuary fund provided in the will.
CAUSE removed from the Court of Equity of ROCKINGHAM.
Morehead for plaintiffs.
McLean for defendants.
The bill is filed by the plaintiffs as executors of Pearson Moore, praying the advice of the Court in relation to their duties in the payment of certain legacies under the testator's will, the portions of which material to the questions propounded are as follows:
"Item 1. I will and bequeath to my wife Isabella Moore one-half of my whole estate, consisting of lands, negroes, etc.
"Item 2. It is my will that grave-stones . . . be furnished for the graves of myself and each of my deceased children; also, a good stone wall to be placed around the whole of the graves, as large as the wooden paling now is.
"Item 3. It is also my will that my negroes select for their masters whomsoever they wish to be their owners.
"Item 4. I will and bequeath to each of my negroes, namely, Lizzy, Batt, Abel, Joe, Nancy, Sarah, Thomas, and Kitt, $50 each. It is my particular wish that the above request be complied with.
"Item 5. I will and bequeath unto Wilson D. Moore the sum of $500 out of the remainder of my estate.
"Item 6. It is also my will, after the above legacies are disposed of, the remainder of my estate be equally divided between Wilson D. Moore, William Moore, David Moore, Julia Moore, Rosannah (55) Moore; also Ellison Walker, William Walker, Thomas Walker, Emily Walker, and Rachel Walker.
"Item 7. It is also my will that my wife's portion of my estate given to my wife be hers absolutely, to do with as she may think proper. It is my will that my wife's portion be taken off before the other distribution is made."
The plaintiffs allege that conflicting claims have been set up by the several legatees under this will which render it unsafe for them to proceed in the administration thereof without the advice and protection of the Court; they particularly desire to be advised whether the widow takes one-half of the gross amount of the testator's estate, or whether the charges of administering the estate and the legacies to the slaves (which are admitted to be lapsed), the legacy to Wilson D. Moore, and the expenses of the tombstones and wall for the graveyard are to be first deducted and the residue only divided between the widow and the other legatees.
Second. They ask to be advised what becomes of the legacies (amounting to $400) intended for the slaves; whether the same falls into the residuary fund, or whether it is undisposed of and is to be distributed according to the statute of distributions.
Third. Out of what fund are the charges for erecting tombstones, etc., and the legacy to Wilson D. Moore to be paid, and whether the lapsed legacies constitute a part of such fund. All the legatees were made parties and answered.
The cause was set for hearing upon the bill, answers, and exhibit, and sent to this Court.
We have examined the will in connection with the pleadings in the case, and are clear in our opinion as to the intention of testator. To us the purpose seems manifest to give the wife one-half of the (56) gross amount of his estate and to subject the other half only to the payment of remaining legacies and charges.
The legacies of $50 to each of eight slaves do not pass from the estate (for the want of competent persons to take), but remain integral parts thereof, and with all other parts constitute the gross fund from which the wife's half is to be divided. The other half is subject, in the hands of the executors, to the payment of legacies and charges; and after these objects are accomplished, the residue is subject further to a division according to the sixth item of the will.
The wife's rights, as a legatee, are not at all touched by questions as to the lapsing of legacies to the slaves or of the fund into which they rightfully fall, for if those legacies had been to capable persons they would have been taken into the account when the wife's half was to be allotted.
And so we think the expenditure in providing grave-stones and a wall for the burial ground and the legacy to Wilson D. Moore set forth in the bill as items 2 and 4 of the will are charges upon the other entire half of the estate, the lapsed legacies included.
Wherefore let a declaration be made to this effect, and a reference for an account to be taken in conformity.
The costs of this suit may be taxed upon the residuary fund in the hands of the executors.
PER CURIAM. Decree accordingly.
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