MacOn v. . MacOn , 75 N.C. 376 ( 1876 )

The life tenant died after the emancipation of the slaves by the results of the war. It is clear that upon the death of the (380) life tenant, the valuation of the land to one daughter, and an equal valuation in negroes to the other daughter, were to be concurrent acts; and that the paramount purpose of the testator was that these two and only children should have an equal share of his estate at the time of this valuation and division. When that time arrived, however, the slaves no longer existed as property, and this secondary and minor intent of the testator as to the mode of division could not be carried into effect. The only part of the estate or fund left, out of which the division could be made, was the land. As to that, there was still the primary and controlling purpose of equality between the daughters. The testator does not declare that the daughter Lucy shall have the land anyhow and at all events; but the devise to her is coupled with the qualification that slaves of an equal valuation with the land shall vest in Sarah, the other daughter; one bounty was dependent upon another. If at the death of the widow the land had been lost by paramount title, and the slaves only had remained, the same controlling purpose of equality between the two children would have required an equal division of the slaves. That equality was the controlling purpose of the testator is further apparent from all the provisions of the will. He had two daughters only, who were equal objects of his affection. Both were married. The husband of one, it seems, was improvident, and the only difference made by the testator between the daughters was that the estate given to this one was secured to her separate use. The testator first gives the daughters the slaves already in their possession, which were of apparent equal value. He next gives them the land and negroes after the life estate of his widow. We have already commented upon this clause of the will. Thirdly and last, he makes an equal division of the residue (381) of his property between them. Thus throughout the will equality between the daughters everywhere appears.

This case is so similar, in all its essential provisions, to Lassiter v. Woods, 63 N.C. 360, that the decision there is a decisive authority in this case. It was there held that equality is the controlling purpose and must be carried out by the court, and that all secondary and minor considerations, when they come in the way, must yield. "And especially is that so when the purpose is in consonance with justice and natural affection."

PER CURIAM. Affirmed.

Cited: Holman v. Price, 84 N.C. 88; Hill v. Toms, 87 N.C. 496;Howerton v. Henderson, 88 N.C. 601.

Dist.: Whitehead v. Thompson, 79 N.C. 454.