Philleo v. Holliday , 24 Tex. 38 ( 1859 )

Wheeler, C. J.

It is not questioned, that the bequest of freedom is void, for the reason that no provision is made for the removal of the slaves beyond the limits of the state. It has ever been the settled policy of our law, to prevent the inhabitancy of free negroes within the state. The constitution of the republic, in express terms, forbade it; and forbade the owner to emancipate his slaves, unless he should send them without the limits of the republic. (Const. Rep. General Prov. § 9.) The law forbids their emigration to the state, and requires all who are in the state to leave it, on pain of being reduced to slavery. (Hart. Dig., Art. 2546-2556.) Hence it has been considered, that a bequest of freedom to slaves, where provision is not made for their removal from the state, but which looks to their remaining here in a state of freedom, is in contravention of the plainly declared policy of the law, and consequently void. (Purvis v. Sherrod, 12 Texas Rep. 140.)

The bequest to the slaves, of their freedom, being void, the question to be here determined, there being no residuary bequest, is, whether Mrs. Hill, or the heirs, shall take the remainder or residue, after the determination of Mrs. Hill’s life estate. It is a cardinal principle in the construction of wills, that the intention of the testator, if not inconsistent with the law, shall prevail. All the rules which are observed in the construction of wills, have for their object, to aid in ascertaining and giving effect to such intention. There is, it is believed, no case where a legacy can be claimed under a will, in opposition to the expressed intention of the testator. There are cases where the heir will take in opposition to such express intention; for the heir does not take under the will, but under the law. The heir derives his title by descent; and his title cannot be supplanted by the will, unless the estate is devised by express words, or necessary implication, to another person. The right of the heir is defeated, only by a substitution of some person to take in his place, and not by a declaration, or express intention, that he shall not take. Hence, though the heir is expressly disinherited, as if a man by his will should declare that his heirs or next of kin shall have no part of his estate, and not direct who shall have it, still the heir would take, not under the will, but under the law; for there must be in the will a devise, to supplant the heir. It is not an intention to disinherit the heir, but a devise away from him, that can disinherit him. (Ram on Wills, 257 ; 8 Law Library.)

The claim of Mrs. Hill to the absolute interest, is under the will; and it seems clear, that she cannot take as legatee or executrix, because there is no bequest to her of that interest, either specifically, or as residuary legatee, by express words or necessary implication; and the language of the will imports the contrary intention; that is, that she shall take a life estate only. Where, after specific legacies, the residue is disposed of by an imperfect bequest, the attempt to dispose of it has been considered a sufficient manifestation of intention to exclude the executors, and constitute them trustees for the next of kin. Accordingly, it is laid down, that “ where the residue was expressly given to the executor for life, the gift excluded him from taking, in that character, any part of it absolutely ; and for this reason, that such restricted gift implied a negative, (namely,) that the executor should not have the surplus for a longer period.” (Rop. on Leg. 1731.)

It is a general principle, applicable to all dispositions of property, whether by deed or will, that whenever it is apparent that any beneficial interest was not intended to accompany the disposition, but no other sufficient and effectual gift of it has been made, it will result back to the original owner. Thus, where the disposition of a beneficial interest is deferred, as where property is devised to a trustee, upon trusts to be declared by a subsequent codicil, and no such declaration is made, or where a trust is declared, but lapses by the death of the beneficial donee, or is invalidated by its uncertainty, or by its illegal character, or by the refusal of the donee to accept the benefit; in all these cases the rule of law is, that the beneficial interest undisposed of, results back to the original owner, or to his representatives or heirs. Accordingly, “ if there be a bequest of personal property for purposes which altogether or partially fail, the next of kin are entitled to it, or to so much of it, as cannot or need not be applied to the purposes of the will.” (Adams Eq.; and see 1 Jarman on Wills, 302-308; 4 Kent, 541.) This is the general rule, and it is conceived, the present case comes fully within its operation.

The rule is subject to modification, by the manifestation of an intention that the legatee shall take a larger estate than that expressly bequeathed, in case of a residue; but in the present case no such intention appears, and the creation of the particular estate raises the primd facie inference, that that alone was intended. We have no means of ascertaining what disposition the testator would have made of the slaves in controversy, after the .determination of the life estate of Mrs. Hill, if he had known the bequest of freedom could not have effect, according to his wishes. There were other legatees, to whom he might have chosen to give them in remainder, or he might have chosen that they should go to the heirs, for whom he made provision in certain events; or he might have provided for their freedom, by their removal out of the state. It is left entirely to conjecture, and the courts never indulge conjecture, as to the possible or probable intention of the testator, for the purpose of helping out a bequest; for that, as has been said, would be assuming the power of making rather than construing the will. “ Where the testator in the disposition of his property, overlooks a particular event, which had it occurred to him, he would in all probability have provided against, the courts will not rectify the omission, by implying or inserting the necessary clause; conceiving it would be too much like making a will for the testator, rather than construing that already made.” (2 Roper on Leg. 1463-4.)

We conclude that Mrs. Hill was not entitled to the absolute interest in the slaves under the will, but that it descended to the heirs, as so much of the property of the testator, undisposed of by the will. And this is in accordance with the opinion of the Supreme Court of North Carolina, in the very analogous case of James’s Executors v. Masters, 3 Murph. Law & Eq. Rep. 110 ; and see Stone v. Hinton, 1 Iredell, Eq. 15.

It appears, that the slaves were the separate property of the testator, and as by his will, he made no effectual disposition of the absolute interest, or remainder, after the determination of the particular estate, as to that interest, he died intestate. And although Mrs. Hill is not entitled to that interest under the will, yet as the deceased left no child or children, or the descendants of children, by the law of descent and distribution, Mrs. Hill was entitled to the absolute interest in one-half of this property. (Hart. Dig., Art. 595.) She was entitled by succession or survivorship, equally with the plaintiffs, as heirs, to come in for her share of the property of the testator, left undisposed of by the will. A bequest to an heir, does not ordinarily affect his legal right; nor does the mere fact of a bequest to the wife, of a life estate in those slaves, affect her right to come in under the statute, for her estate in one-half of the remainder, after the determination of the life estate.

A case of election does not arise in the claim of the wife to the bequest of the life estate under this will. The principle of election is, that he who accepts a benefit under a will, must adopt the whole contents of the instrument, so far as it concerns him ; conforming to its provisions, and renouncing every right inconsistent with it; as where the wife claims something under the will which will disappoint the will. There is nothing in the wife’s claim to the life estate which is inconsistent with the will, which will prevent giving full effect to it, or which will have the effect to disappoint the will. Her claim can have no such effect. She cannot be denied her right to her share of the property, of which no valid disposition was made by the will, in consequence of having accepted the bequest. (1 Jarm. on Wills, ch. 15, tit. Election; Carroll v. Carroll, 20 Texas Rep. 731, 744.)

There is nothing in the proceedings in the Probate Court, to conclude the right of the wife in the property in question. The decree of the court did not assume to make any disposition of the wife’s interest in the remainder, but only adjudged to her her life estate in the property mentioned in the will.

We conclude, that the wife was entitled to the one-half the estate in remainder in this property; and if, as seems to be admitted, she has disposed of her entire interest to the defendants, they are entitled to a like interest. It follows, that the recovery, which was for the whole estate, or interest in remainder, is erroneous. The judgment must, therefore, be reversed, and the cause remanded, with instructions that judgment be rendered in accordance with this opinion.

Reversed and remanded.