Givins v. . Givins

5 N.C. 193

• Court: Supreme Court of North Carolina
• Decided: July 5, 1808
• Status: Published

Opinion

From Salisbury District. THE complainant filed a bill in the Court of Equity for Salisbury District against the executors and devisees of Edward Givins, deceased, to compel the payment of a legacy of £ 1,000, given to her by the said Edward in his last will. The personal estate had been exhausted in the payment of testator's debts, and the question sent to this Court was whether the legacy claimed by complainant was a charge upon the real estate. The testator, after directing his just debts and funeral expenses to be paid out of his personal estate, gives to his wife £ 1,000, and charges his real estate with her maintenance; then follows the bequest to complainant: "I give and bequeath to my daughter, Ruth, £ 1,000." He gives a few other pecuniary legacies, and then gives all the remaining part of his estate to his three sisters. The complainant was testator's only daughter. The testator directs the fund out of which the wife's maintenance shall be made, but is silent as to the pecuniary legacies. He is also particular in requiring his debts to be paid out of his personal estate; and this furnishes some implication that he did not also mean to render that liable to the payment of the legacies. But when he devises the remainder of his estate to his sisters, etc., the necessary construction is that they shall be entitled to whatever is left after the payment of his debts as well as legacies. It would be unreasonable to give the will such a construction as would give the sisters their residuum and deprive the (194) daughter, an only one, of her pecuniary legacy; more especially when it cannot be collected from the will that any intention of that sort was entertained by the testator.