Teague v. . Teague

Settle, J.

This action was brought to obtain a construction of the will of Yandiver Teague, Sr., and was submitted to his Honor, a jury being waived, to find the facts and declare the law thereon. The first question arises upon the following provisions of the will: “ I will and bequeath to my beloved wife, Mary B. Teague, forty acres of land, including the house and building, during her natural lifetime, then to be equally divided between my three youngest daughters, to-wit, Sophronia J. Teague, Elizabeth A. Montgomery and Amanda F. Teague. * * * I also will and bequeath all the rest of my tract of land that I now live on, known as the Newland land, to my three youngest daughters, Sophronia J. Teague, Elizabeth A. Montgomery and Amanda L. Teague, to.be equally divided.”

We concur with his Honor, that the Newland land, embracing the home place, the “Sal Self” place, and the eighty acre entry, constitute one and the same tract or plantation, having been used as such for thirty or forty years, and conveyed as such to the testator, and that the whole passed to his three youngest daughters, subject to the life estate of their mother, in forty acres. The fact that the testator made deeds to his three youngest daughters for portions of this land, subsequent to the execution of his will, cannot vary the construction of of the will; and indeed there is nothing in the circumstances attending this case, inconsistent with the idea that the testator intended the portion not conveyed by deeds, to go to his three youngest daughters, under the provisions of his will, which have been quoted.

After disposing of bis borne place, the testator turns bis attention to his other lands, and directs “that all the rest of my land, with the exception of the land where my son, William S. Teague, lives, that land the said William must pay for what I paid without interest, then my executors to make him a deed, to be sold and my daughter Nancy Austin’s heirs to. have fifty dollars each, the balance to be divided among my other heirs.” The testator draws a distinction between his grand children, “ Nancy Austin’s heirs,” and his own children,., whom he designates as “ my heirs.”

But the question is, who are embraced in the description “my other heirs”? We think it evident, that the testator-having just made provision, in land, for his three youngest daughters, intended that they should be excluded from all benefit under this clause of the will, which deals exclusively with the fund arising from the sale of land. Nancy Austin’s ehil- ■ dren are clearly excluded from all benefit under the will, save the legacy of fifty dollars to each of them, to be paid out of the fund arising from the sale of land.

The mention of William S. Teague’s name in the clause under consideration, was neither for the purpose of providing, for, nor excluding him, but only to direct that he should pay for the land on which he lived, and thereby increase the land fund, out of which he is to draw as one of “my other heirs,”' meaning other than the three youngest daughters already provided for. The testator then turns his attention to his per- ■ sonal estate, and after giving directions as to the payment of debts due from his three sons, &c., concludes, “ all the rest of my property to be sold and equally divided among my nine heirs, my wife an equal heir’.”

If we leave out of view Nancy Austin’s children, the meaning of the testator is apparent. The money arising from the collection of his debts, (other than the debt due from his son William for land, which goes into the land fund,) and from the sale of his personal property, not specifically disposed of,., is to create a fund in which his eight children and his wife, filling the description, “ my nine heirs, my wife an equal heir,” ■are to share equally.

Ve concur with his Honor, that although some of the debts due from his sons to the testator may be barred by the statute -of limitations, they must be paid before the sons owing them can claim any benefit under the will.

This disposes of all the questions worthy of attention.

Let this opinion be certified, to the end that the court below may proceed according to law.

Per Curiam. Judgment accordingly.