Lashley v. . Lashley , 48 N.C. 414 ( 1856 )

Pearson, J.

The case turns upon the meaning of the wo rd single,” as used by the testator, in the bequest to his daughter, Eanny. When applied to a woman, “ single,” in its strict literal sense, moans without a husband; but in its ordinary sense, and as used in common parlance, it denotes a class; those who have never married, as distinguished from married women and widows. We are satisfied this is the sense in which it was used by the testator. His daughter, Eanny, in respect to the legacy given to her, was the primary object of his bounty; therefore, the restraint upon it ought not to be extended by implication. The testator uses the word “ single,” in opposition to the word unmarried, and obviously had in his mind, two future events. Eanny will either marry and settle in life, like the rest of my children, or she will remain unmarried, and continue to be with her mother; in this latter event, I can restrict the legacy, without interfering with her prospects in life; so, in that case, I direct the property willed to her, to be equally divided among the rest of my legatees.

There is another view, which we think conclusive. The limitation over, is not, if she should die single, and without having children, but, simply if she should die single ; so, tak* ing the word “ single,” as embracing the condition of her being a widow, the limitation over would take effect, although she left half a dozen children. A construction which leads to such a result cannot he for a moment entertained.

It- was suggested upon the argument, that the term “single woman,” had received a judicial construction, under the bastardy law, and was extended so as to include widows. So it has been extended to married women, under certain circumstances ; but this broad construction of the word, as used in the bastardy law, is put on it to meet the mischief, and carry out the intention of the Legislature. But, as we have seen, there is nothing in the will under consideration, to extend the word beyond its ordinary meaning, and to indicate an intention to make a limitation over, if the daughter should be a widow, at the time of her death.

As the facts in this case are admitted, we will suggest to counsel, that, in all such cases, where a mere question of law is involved, the better course is to put the case in a shape so as to make the judgment of this Court final. In the way the statement of this case is made up, we can only direct a venire d.e novo.

Per Curiam.

Judgment reversed. Venire de novo.