Morton v. . Edwards , 15 N.C. 507 ( 1834 )

PLEA, non detinet.

The plaintiffs claimed title to the slaves under the will of William McGehee, their grandfather. By clause 3 of his will, the testator devised as follows: "I give and bequeath unto my daughter Martha Morton two negroes, named little Ben and Amey." By the 13th as follows: "Martha Morton to have a negro of seventy pounds value, which negro, together with those I formerly lent her, at her death to be divided between her children.

Martha Morton died in 1832, leaving the plaintiffs, her children. The slaves demanded in the writ were Amey and her issue. The plaintiffs proved that in the year 1801, the testator lent Amey and little Ben to Martha Morton and her husband. The defendant claimed under a sale made to him in November, 1810, by George Morton, the husband of (508) Martha, and contended that by the will of the testator, an absolute interest in Amey was given to Martha Morton, who vested in her husband.

His Honor instructed the jury that if they should find that the slaves Amey and little Ben were the same slaves which had been lent by the testator to his daughter before the execution of the will, that by the 13th clause an interest for life only in the slaves, vested in Martha Morton, and an absolute interest in remainder in the plaintiffs, which would enable them to sustain this action.

A verdict was returned for the plaintiffs, and the defendant appealed. In construing a will the intention of the testator, if consistent with established rules of law must be observed, and no part to which a meaning or operation can be given, shall be rejected.

A will is not to be construed by adverting to a single clause only; every thing bearing on the subject which is to be discovered from the will itself, must be taken together, in order to ascertain the testator's intention. Parol or extrinsic evidence, is admitted, not to control a will, but to show either with reference to what it was made, or to explain a latent ambiguity.Bengough v. Walker, 15 Ves. 514. Therefore parol evidence was in this case admissible, to show that the slave Amey was one of those referred to by the testator in the thirteenth section of his will, by the words, "which negro, and those I formerlylent her, at her death to be equally divided between her children." The evidence did show that the slave Amey was one of those the testator had lent to his daughter Martha, and therefore fell within the bequest to her children after her death, by the thirteenth section of the will. And the evidence likewise showed that she was the same slave (509) Amey, that was given in the third section of the will to Martha Morton. The question presents itself, whether the testator, having made a general bequest of the slave Amey to his daughter by the third section, could by the subsequent thirteenth section, limit any interest in the said slaves by way of executory devise to her children? If the same slaves had been given absolutely to the children by the latter section of the will, which had been given to the mother by a former section, the mother and children would have been tenants in common according to the decision of this Court in Field v. Eaton, 16 N.C. 283. The slaves bequeathed being identically the same in both clauses of the will, and the Court looking through the whole will to find out the meaning and intention of the testator, feels no difficulty in pronouncing that intention to be, that Martha the daughter, should have an estate for life only in the slaves, by virtue of the third section of the will, and that the after limitation by way of executory devise to her children, in the thirteenth section was good in law. It is a doctrine which hath prevailed at all times as to wills, that where there is a gift of property, and a subsequent limitation inconsistent with the former, as an absolute and complete disposition of the thing, that does by necessary implication cut down the former limitation. Wykham v. Wykham, 18 Ves. 421, 422. We think the judgment rendered in the Superior Court should be affirmed.

PER CURIAM. Judgment affirmed.