Lassiter v. . Wood .

63 N.C. 360

• Court: Supreme Court of North Carolina
• Decided: January 5, 1869
• Status: Published

Opinion

Reade, J.

The testator had a large estate, consisting; almost altogether of lands and slaves; and be had eight children, five daughters and three sons.

The difficulty in settling the rights of the parties arises out of the altered condition of the testator’s estate by reason of the emancipation of the slaves.

It is apparent that the leading purpose of the testator was to make all his children equal. The purpose of the testator as gathered from the will, is always to be carried out by the.' Court, and minor considerations when they come in the way must yield. Especially is this so, when the purpose is in consonance with justice and natural affection.

The bulk of the testator’s land is given to his sons in parcels, and although the land is not valued, yet it appears that he meant to give to each son about the same in value;, because he charges the land given to his son Beniamin with $2,500, to be paid to his son Joshua: saying, “ this I consider-due my son Joshua from my son Benjamin to make up for the inequality in the value of their lands.” That he intended to make his daughters equal, appears from the fact, that he gave to each of four $10,000, and to the fifth daughter he gave a. tract of land valued at $6,000, and $1,000 in cash, which added to $3,000 that he had advanced to her husband would, make her share equal with her sisters. And that he intended to make all, sons and daughters equal, appears from the fact that he directs all the residue of his estate to be equally divided into eight equal parts, giving to each of his children a. share.

By reason of the emancipation of the slaves, the estate other than the lands devised to his sons, is insufficient to pay the pecuniary legacies of $10,000 each to his four daughters, and the main question is, whether the pecuniary legacies are a charge upon the real estate specifically devised. If they are, then the effect may be to exhaust the whole of the real estate, and leave the sons nothing; and if they are not, then the sons take almost all the estate from the daughters. That either effect-would do violence to the intention of the testator, we have-made plain.

The 7th clause of the will is, “ I give and bequeath unto my daughters Catherine, Alithia, Mary and Patsy, the sum of :$10,000 each, to be paid them out of my estate.”

We have considered this clause in view of the cases of Bray v. Lamb, 2 Dev. Eq. 372 and Biddle v. Oarraway 6 Jon. Eq. •95; and without disturbing those cases, we put this case upon ,the ground of the manifest and leading purpose of the testator to share his bounty equally among his children. To effect that purpose, we adopt the conclusion, that the pecuniary legacies to the four daughters each, of $10,000, are chargeable upon the lands devised to the sons, so far as is necessary to produce -equality among all the children of the testator. To this end the residue must be ascertained and applied so far as it will go, and all the property, real and personal, not specifically devised and bequeathed must also be ascertained and applied to the satisfaction of the pecuniary legacies to' the four daughters; and if the said legacies are not satisfied m full, then the .specific devises of land must be valued, and if their value shall be over and above the amount paid by the residuum, &c., to the daughters’ legacies, then such overplus shall be equally -divided among all the sons and daughters, so as to make all equal.

The reference for an account, was a proper order on the -cause.

The order for the sale of the real estate other than that specifically devised, was also proper.

The interest upon the pecuniary legacies is properly chargeable from and after a year from the death of the testator.

This will be certified, &c.

Pee CüRIam. Judgment accordingly.