Carter v. . Worrell , 96 N.C. 358 ( 1887 )

Merrimon, J.,

(after stating the facts). The Court properly interpreted the provision in question of the will before us.

It is clear, we think, that the testator intended to give his land to his sons — one an infant and the other of full age— charged respectively with pecuniary lagacies in favor of their two sisters. That part of it situate on the north side of the road, which it seems made a covenant line of division, he devised to Walter “after the death of his mother,” charged in the meantime with the common support of his widow and his two infant children, and with a legacy of one thousand dollars, subject to some indebtedness, in favor of Mary Bishop, a married daughter; that part situate south of the same road, he devised to Charles, charged with the legacy of five hundred dollars in question.

After thus devising his land to his sons respectively, by the second and third clauses of his will in explicit terms, he then directs that part of it devised to Walter, “ that is, all that part of the farm on the north side of the road, be worked in common for the support and maintenance of my two youngest children, Ida and Walter, and their mother, until they arrive at years of accountability;” and he further, in that connection, directs that a part of the earnings of the land — that is the reasonable import of the terms and their connection — “ be set aside each year,” to pay his daughter Mary Bishop, one thousand dollars, less such sums of money ■as he had given her. The testator thus showed a purpose to charge the land and in favor of the daughter named.

Having thus burdened the part of the land devised to Walter, he expresses the wish that his son Charies — -his son of full age, it seems — “ shall have all the management of settlement of my (his) estate, and pay off the legacy above given, (that to Mary Bishop,) to the best advantage.” How to the “ best advantage ” ? He directs that for that purpose, “ a certain part be set aside each year ” — that is, as is plainly implied by the connection in which these words are used— a certain part of the earnings of the land devised to Walter, after the death of his mother. It is pretty clear that the testator desired and intended — he so requested — that Charles should superintend and manage the part of the farm devised to Walter, certainly during the life of his mother, and perhaps until he and Ida should “ arrive at the years of accountability.” He could thus have fair opportunity, conveniently and “to the best advantage each year” to set aside apart of the earnings to pay the legacy in favor of Mary Bishop.

The testator then directs that Charles “ also pay unto my daughter Ida, five hundred dollars, after giving her a good English education, payable in installments as he may think best.” He does not in terms direct this legacy to be a charge upon Walter’s part of the land during the life of his mother, or afterwards, as he had directed another legacy to be; he does not direct his executor to pay it; he does not direct it to be paid out of his estate generally, but he directs Charles to pay it. Why ? The reasonable inference is, because he had given Charles the whole estate in the land lying south of the road mentioned, and one half of his interest in the mill and. cotton gin, the latter subject to the use of the same by the widow during her life-time. He intended that Charles should have the land charged with five hundred dollars in favor of his sister Ida.

This sum he was required to pay “in installments,” as he might think best. This provision is not consistent with a purpose to have the legacy paid out of the personal estate. There is no direction that it should be paid out of the personal estate. Indeed, it does not appear from the will, that there was such estate out of which it might have been paid. The personal property, so far as appears from the will, except certain parts of it given to the widow, was to be kept and used on the farm to be cultivated for the support of the two youngest children and their mother, and the payment of the legacy to Mary Bishop.

The interpretation thus given, renders the several provisions of the will reasonably consistent, and gives effect to the general purpose of the testator to divide his land between his two sons. Judgment affirmed.

No error. Affirmed.