Delap v. . Delap ( 1855 )

The executor of the will of John Delap, filed this bill, asking the advice and direction of the Court of Equity, upon questions growing out of the will, which is as follows: "I give and bequeath to my well-beloved wife, Margaret, the whole of my landed property not (291) otherwise disposed of; all the household and kitchen furniture of every description; my negro man Tony, and my negro woman Elizabeth; all to be her's during her life-time or widowhood, and after her death or marriage, all to be exposed to public sale by my executor, on a reasonable credit, and the money arising from the sale thereof, and the offspring of the said negro woman (if any) to be equally divided among my children by my present wife. It is here to be understood, that it is my will and desire, that after the death or marriage of my wife, the said Elizabeth and her daughter Milly are not to be sold, but to live with some of my children by my present wife, which ever they may think fit."

The testator, John Delap, was twice married, and left children surviving him by both marriages. Joseph, Felix, Robert, Barnabas, and Susannah, intermarried with Joseph Miller, are the children of the second marriage. Margaret, the testator's last wife, survived him, and remained his widow until some time in the year — — , when she intermarried with one Jonathan Wilson. They are both made defendants to this bill. The other defendants are Robert and Barnabas of the second marriage, and all the children of the first marriage, with the husbands of the female children who have married.

The negro woman Elizabeth, mentioned above, and her daughter Milly, both died during the widowhood of Margaret. Milly left two children, which, since the marriage of the widow with Wilson, have been, and still are, in the executor's possession.

The executor states in his bill, that differences exist among the next of kin and legatees of the testator, as to the proper legal construction of the foregoing clause of the will. The children of the second marriage claim to be entitled to the issue of Milly, to the exclusion of the children of the former marriage, insisting that the increase of Milly is included in the idea of the offspring of Elizabeth, and that they should be permitted to select their owner or owners among the children of the second marriage, who should pay a fair price for them; or should be sold, and the money divided amongst this set of children. (292) The children of the former marriage, on the other hand, insist that, as to the increase in question of the woman Milly, the testator, John Delap, died intestate, and that it should be distributed under the Act of Assembly applicable to such cases. He calls upon the persons thus differing, and embarrassing his action with their doubts, to come forward and litigate them in this Court; and he prays the advice and direction of the Court in the premises.

The defendants having failed to answer, judgment pro-confesso is entered as to them; and the cause being set down for hearing, ex parte, on the bill and exhibits, was sent to this Court, under the Act of Assembly. The pleadings do not show whether the children of the woman, Milly, were born after or before the death of the testator. If before, then they belong undoubtedly to the testator's children by his last wife; because Milly herself was given to them after the death or marriage of the widow. If after, even then, we think that they are given the same way, under the description of the offspring of the woman Elizabeth, who was the mother of Milly. In support of this construction, it will be observed that Milly herself is bequeathed at first under the designation of Elizabeth's offspring, and her name is mentioned afterwards, only for the purpose of declaring that she and her mother were not to be sold with the other property which had been given to the testator's wife during her life or widowhood, and that they were to have the privilege of selecting, among the designated legatees, the person with whom they might think fit to live. The word "offspring" will include grand-children as well as children, unless there be some other expressions in the will, indicative of a contrary intention, and we cannot find any such in the present will.

It has already been seen that the testator intended that his (293) women, Elizabeth and Milly, should not be sold, but should have the privilege of selecting their owner, from among the children of his last wife. The same favor, except perhaps in the particular of choosing their master, was, we think, intended to be conferred upon Milly's children. See Washington v. Blount, 43 N.C. 253. The mother and grand-mother being dead, and of course incapable of choosing for themselves or their offspring, the executor may permit one or more of the legatees, selected by and among themselves, to take the slaves in question, upon paying a fair price for them. If the legatees cannot agree upon the person or persons to take them upon those terms, then, the executor may deliver the slaves to them, to be held in common.

Per curiam.

A decree may be drawn in accordance with the opinion.

Cited: Harrison v. Everett, 58 N.C. 164.