Britt v. Smith

• Decision Date: 28 February 1882
• Citation: 86 N.C. 305
• Court: North Carolina Supreme Court
• Parties: JAMES P. BRITT, Adm'r, v. TABITHA E. SMITH and another.

86 N.C. 305

JAMES P. BRITT, Adm'r,

v.TABITHA E. SMITH and another.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION for construction of a will, heard at Fall Term, 1881, of GREENE Superior Court, before Shipp, J.

This action is brought by the personal representative of B. H. Smith, deceased, for the purpose of having ascertained the respective rights of the defendants, Tabitha E. Smith and Zilpha M. Edwards, under the will of the said Smith, the said Tabitha E. being his widow, to whom was given his estate real and personal for life, and the said Z. M. Edwards being his sister, to whom his personalty was given in remainder. The will provides as follows:

“Item 1. I leave and devise to my beloved wife, Tabitha E. Smith, during her natural life or widowhood, all of my landed estate that I may possess at my death, and also all of my personal property under same restrictions as that of my real estate, except as is hereinafter provided; and after her death or widowhood, and if I should have no heirs of my body, then I give and devise to W. F. Edwards' two daughters, Cornelia and Zilpha, all of my real estate in fee.”

“Item 2. I devise at my death that my administrator shall pay to Richard G. Smith and Elizabeth J. Smith, children of my half brother, Thomas Smith, the sum of three hundred dollars each, to be paid out of my personal property.”

“Item 3. I give and devise to my sister, Z. M. Edwards, wife of W. F. Edwards, at the death of my wife, all the balance of my personal property of every description, not heretofore disposed of, to have,” &c.

The testator died possessed of the tract of land whereon he resided, and of personalty consisting of hogs, cattle, a horse and mule, corn, cotton, pork, lard, bacon, wheat, farming utensils, household and kitchen furniture, cash on hand, and notes and accounts amounting to some $1,400. The notes and accounts have been collected, and the money used in paying the money legacies under the will and the debts of the testator, leaving a balance in the hands of the administrator of some $320.

The question presented is, whether the administrator shall deliver the personalty in kind to the widow as tenant for life, or whether he shall convert it into money and pay her the interest only, reserving the principal to be paid, upon her death, to the sister as remainderman, and the court held that plaintiff deliver the same to the defendant, Tabitha, from which ruling the defendant, Zilpha M. Edwards, appealed.

Messrs. Grainger & Bryan, for plaintiff .

Mr. W. C. Munroe, for defendant .

RUFFIN, J.

There can be no mistaking the rule as laid down in Smith v. Barham, 2 Dev. Eq., 420, Jones v. Simmons, 7 Ired. Eq., 178, and Ritch v. Morris, 78 N. C., 377, and which must be taken, as was said by Mr. Justice BYNUM in the last of those cases, as the settled doctrine in this state. It is, that whenever personal property is given, in terms amounting to a residuary bequest, to be enjoyed by persons in succession, the interpretation the court puts upon the bequest is, that the persons indicated are to enjoy the same in succession; and in order to give effect to its interpretation, the court, as a general rule, will direct so much of it as is of a perishable nature to be converted into money by the executor, and the interest paid to the legatee for life, and the principal to the person in remainder.

The rule, though declared by the courts of England, so long ago as the time of LORD ELDON in Howe v. The Earl of Dartmouth, 7 Ves., 137, and frequently affirmed since, has never been a favorite one with those courts; and the effect of the later cases has been to allow very slight indications of a contrary intention, on the part of a testator, to prevent its application, ( Morgan v. Morgan, 14 Beavan, 72), and such certainly has been the tendency of the decisions made in this court, as may be seen by reference to Taylor v. Bond, Busb. Eq., 5, Williams v. Cotten, 3 Jones Eq., 395, and Chambers v. Bumpass, 72 N. C., 429.

So far as we have been able...