Jourdan v. Miller

WARNER, J.

_ This is a bill filed by the executor of Wiley Miller for direction. The following facts were disclosed on the trial: The testator died in 1865, leaving a will, one clause of which is in the following words: “I will and direct that my son, Iverson G. Miller, take, as a part of his portion, the negro *man Peter, who is now in his possession, at $1,200 00, and my negro boy Green, at valuation; and that he take, at his choice, lot of land number one hundred and seventy-nine, at $1,000 00, or lots of land numbers one hundred and seventy-nine, one hundred and seventy-eight, one hundred and sixty-five, and one hundred and sixty-six, at a fair valuation, said lots lying in the fifth district of Randolph county.” Iverson G. Miller, the devisee named in the will, is dead, leaving Missouri P. Miller, his infant child, his • only legal representative. The four lots of land mentioned above were appraised by the appraisers appointed by the Ordinary, to be worth $2,400 00. The guardian of Missouri P., the infant child, with the assent of the executor, elected to take the four lots of land at the appraised value thereof, and went into the possession thereof in her right, and is now in the possession of the same. ' The allegation made in the complainant’s bill, in relation to the execution of this clause in the testator’s will is, “that the words and directions contained therein are so confused and unintelligible, as to render a construction or safe execution impossible by your orator as executor.” The decree of the Court in ’ relation to the rights of Missouri P. under this clause of the testator’s will, was, that the commissioners appointed to divide the testator’s estate among the legatees named in the will, “shall, after deducting $1,200 00, assign to her one share of said estate, (there being nine shares,) who can elect to take lot number one hundred and seventy-nine, at $1,000 00, as part of her said share; if said land amounts to over the share, she shall refund the surplus to the commissioners; if it amounts to $1,200 00 or more, she retains the $1,200 00 she has received under said will, and the overplus, if any, is to be paid to her by said commissioners, and the $1,200 00 of the share shall be set aside by the commissioners, to be hereinafter disposed of, or provided for.”

. The decree further declared “that the minor child of Iverson G. Miller shall receive nothing until the other childrens’ shares amount to $1,200 00 each.” This decree of the Court below, in relation to the rights of the infant child of *Iverson G. Miller, under the testator’s will, as we understand it, is error, there being no evidence in the record that the negro man Peter was an advancement made by the testator to Iverson G. in his lifetime. Whether he was in his possession as his own property, or as the property of the testator, does not appear from the evidence in the record. As the guardian of the infant child, Missouri P., elected to take the four lots of land at the appraised value thereof, and went into the possession of the' same with the assent of the executor, he is entitled to hold the same as the property of his ward under the will without abatement, so far as the executor is concerned, under the allegations in the bill, and the evidence- contained in the record. In other words, neither the written allegation, in the complainants’ bill nor the evidence in the record, make such a case . as entitles the executor to interfere with the rights and interests of the infant ward, Missouri P., in the four lots of land which she, by her guardian, elected to take under the will at a fair valuation, and did take with the assent of the executor. Let the judgment of the Court below be reversed.