W. T. and J. K. Redmond v. . Burroughs .

63 N.C. 242

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

Opinion

Reade, J.

1. The testator bequeathed to “W. T. Redmond $2,000, to be put at interest for the purpose of giving him a classical education” with the direction “that said $2,000 shall be expended, and that he shall take his course at the University of North Carolina.”

W. T. Redmond was some eleven years of age at the date of the will, and the testator lived some ten or twelve years thereafter. W. T. Redmond never received the education designed for him (although the testator did send him to school until he received the rudiments of an English education,) and the $2,000 was never expended. He is now a grown man with a family. And thence the defendants insist that as the sole purpose of the bequest was to educate W. T. Redmond,, and as that purpose cannot now be effected, the bequest fails. There would be much force in this view, if there were any limitation over of the legacy upon the failure to effect the purpose of the testator; but there is none. The gift is absolute; with the request, to be sure, that it shall be used in a way most to the advantage of the legatee in educating him. But. as it has not been used in the most advantageous way, is that, a good reason why it shall not be used for him in any way t Or, that he shall be deprived of it altogether ? We are of the opinion that he is entitled to it.

We do- not overlook the fact that the defence is set up that the legatee would not receive the education. At the same-time that this defence is set up in the answer, it is stated that it was impracticable for him to, receive it, on account of his-age and condition. If that be so, then it is the very best reason why he did not receive it, and why he should now have the money. The fact that he was placed at school by the testator in his life time, and that he left school of his own accord without completing his education, makes no difference, because he should have been controlled, and, while a minor, is supposed to have been controlled by his parent; and especially because the' will speaks as of the time when the testator died, and is "to the same purpose as if it had been dated at that time, and the bequest made to take effect thereafter.

II. There is also a devise of a certain tract of land to W. "T. Redmond, which, by the direction of the devisor was levied •on under an execution against himself, and after his death, W. T. Redmond bought the land at the execution sale to relieve it of the imcumbrance. And now he seeks to be subrogated to 'the rights of a creditor, and to have the amount which he .advanced paid' out of the personal estate or out of the residuum. We are of the opinion that he is entitled to be subro-gated. It would not have been so, if it had been, not only 'levied upon, but sold in the life-time of the devisor.

III. The testator bequeathed the “residuum of his estate to ‘he sold, and the proceeds to be divided between his next-of-'kin, share and share alike, with the exception that Caroline .Barbee shall share equally in the proceeds with his next-of-kin. ”

The question raised upon that clause, is, what is meant by “ next-of-ldn ? ” Next-of-kin in common parlance means near•est of kin, and such has been decided to be its meaning in legal parlance, and where used in wills. Jones v. Oliver, et. al. 3 Ire. Eq. 369; Simmons v. Gooding, 5 Ire. Eq. 382.

If this is the meaning of the words, then the living nieces and ■nephews of the testator together with Caroline Barbee, take the residuum, to the exclusion of the representatives or child,ren of deceased nieces and nephews. But it was insisted by Mr. Battle, that, when technical words are used, they are to be understood in a technical sense, unless the contrary clearly .appears. That is certainly true. And thence he insists, that next-of-ldn are technical words used in the Statute of Distribu» tions, to denote those who take the estate in cases of intestacy, and that if the testator had died intestate, and his estate had been distributed among his next-of-kin, the children of •deceased nieces and nephews would have taken with the living nieces and nephews. If next-of-ldn were the technical words so used in the statute, it would be difficult to resist the argu- meat. But there lies the error. Next-of-hin are not the words used in said statute to denote those who take. If they were, then only the living nieces and nephews would take as being next, nearesl-of-hin, as between them and the children of deceased nieces and nephews. But the words used are not next-of-Mn, but “next-of-kin who are in equal degree, and those who legally represent them. ” It will be seen, therefore, that to bring the terms used in the will within the technical words used in the statute of distributions, the words, “ and those who legally represent them ” would have to be added. We are of the opinion that the terms used in the will, “ next-of-kin, mean nearest of kin, and that the living nieces and nephews take, to the exclusion of the legal representatives of deceased nieces and nephews.

IY. The plaintiffs are entitled to the other legacies named' in the will, if they have not already been delivered to them since the death of the testator, as there is no evidence of their ademption in the life-time of the testator.

The plaintiffs are entitled to an account, if desired, and it will be referred to the clerk for that purpose, and the cause-will be retained for father directions.

Per Curiam. Decree accordingly.