Carver v. . Oakley

57 N.C. 85

• Court: Supreme Court of North Carolina
• Decided: June 5, 1858
• Status: Published

Opinion

Rattle, J.

We think that there cannot be any reasonable doubt as to the proper construction of the will of the testator, Josias Carver, sen. The testator certainly supposed that the intended legatee, for life, Betsey Carver, would survive him, and the slaves given to her, for life, were, at her death, or marriage, to be equally divided between such of the grand-children of his deceased son, Josias Carver, jr., as might be then living. The death of Betsey Carver, in the life-time of the testator, removed her life estate out of the way, and the grand-children of Josias Carver, jr., must take immediately upon the death of the testator, just as if no previous life estate had been mentioned in the will. That being the period for the division of the property, all the grand-children, who were then living, are entitled to a share in it. It is a well established rule of construction, that when property is given, by will, to a class, as many of the class shall be included in the benefit of the gift as can be, without doing violence to the language of the instrument. Here, the period of division among the grandchildren, as a class, is the death of the testator, and we think all must be embraced, who were then in being. Let a decree be drawn for a division according to this opinion.

Per Curiam, Decree accordingly.