Field v. Eaton

• Decision Date: 30 June 1829
• Citation: 16 N.C. 283
• Court: North Carolina Supreme Court
• Parties: ALEXANDER S. FIELD, ADMINISTRATOR OF CHARLES G. FIELD, v. WILLIAM AND THOMAS B. EATON, EXECUTORS OF THOMAS EATON.

16 N.C. 283

ALEXANDER S. FIELD, ADMINISTRATOR OF CHARLES G. FIELD,

v.WILLIAM AND THOMAS B. EATON, EXECUTORS OF THOMAS EATON.

SUPREME COURT OF NORTH CAROLINA AT RALEIGH

JUNE TERM, 1829

1. A testator bequeathed a large estate, in land and slaves, to his son, and by a subsequent clause of the same will gave one of the same slaves to his daughter: Held, that the legatees took the slave by moieties.

2. The son claimed the slave by a gift prior to the will; but as he had taken other property under the will: Held, that he had made his election, and could not claim against it.

3. There being no latent ambiguity, but plain contradictory bequests: Held, that parol evidence was inadmissible to prove the testator's intention to give the property to the son.

4. Where there is no latent ambiguity, but plain contradictory bequests, parol evidence of the testator's intention is inadmissible.

From WARREN. The bill was filed in 1817. The original parties to it were Charles G. Field and Harriet, his wife, plaintiffs, and William and Thomas B. Eaton, executors of their father, Thomas Eaton, defendants. During the pendency of the suit the original plaintiffs died, and it was prosecuted in this Court by the plaintiff Alexander S. Field, as administrator de bonis non of Charles G. Field.

The facts admitted by the pleadings were that the testator ofthe defendants, by his will, gave a large estate to his son, the defendant William, consisting of lands and slaves; among the latter was a female slave by the name of Sal. In a subsequent clause of his will the testator gave the same negro to his daughter Harriet, the wife of the original plaintiff, Charles G. Field. Both bequests were in the same words, viz.: "Sal and all her increase since 1804." The defendant

William Eaton, in his answer, claimed the girl Sal and her increase under a parol gift made before 1804, and insisted that it was the intention of the testator to confirm the prior gift to him, and that the mention of her name in the gift to Harriet was a mistake. Evidence of the testator's intention was taken and filed, but it is unnecessary to give a statement of it, as it was deemed inadmissible.

TOOMER, J. There is undoubtedly a contradiction and repugnancy in the bequests contained in this will. The testator first gives Sal by name to his son William. He then gives her in the same way to his daughter Harriet. The inquiry is, What was the intention of the testator, as it is to be collected from the face of the will? If such an intention can be ascertained by looking at the will, and it be in violation of no principle of law, it is the duty of the Court to give it effect. In theconstruction of wills, the testator's meaning is to be discovered from the will itself, taking in aid the general rules of construction established by former decisions. Noel v. Western, 2 Ves. & Bea., 271. In cases of such direct contradiction and absolute repugnancy, the intention of the testator cannot be discovered from the face of the will.

It is manifest the chattel was intended for one or both of the legatees; it is not one of those cases in which the bequest is void for uncertainty. It is then necessary to establish some rule of construction prescribing who is under such circumstances to take the legacy, and in what manner, in order to preserve the peace of society and to prevent future litigation. If we cannot ascertain the intent of the testator by looking at the will, we next inquire what construction the law has imposed on such inconsistent bequests. In such case no rule of construction has been established in this State. We must then resort to the adjudications of that country from which the elementary principles of our system of jurisprudence have been derived. There we find a great contrariety of opinion. Some thought that both devises were void for uncertainty. Owen, 84. Lord Coke held that in two different devises of the same thing, the last should take place; others have concurred with him in saying that the second devise revokes the first. Cruise Dig., tit. Devise, ch. 9, sec. 22. In Paramore v. Yardley, Plow., 539, 541, it is said the legatees shall take as joint tenants. Of this opinion was Swinburne. In Ulrick v. Litchfield, 2 Atk., 374, Lord Hardwicke, referring to Paramore v. Yardley, said: "The reasoning in Plowden is not convincing to me. I rather incline to Lord Coke's, though the latter cases have

taken it otherwise." In Ridout v. Pain, 3 Atk., 493, Lord Hardwicke again says: "The law presumes that a testator, even in making his will, may vary his intention. As suppose a man gives a farm in Dale to A. and his heirs in one part of his will, and in another to B. and his heirs: it has been held by the old books to be a revocation, butlatterly construed either a joint tenancy or tenancy in common, according to the limitation." The opinion supported by the greatest number of authorities is that the two devisees shall take in moieties. Coke Litt., 112, b. note 1; Cruise's Dig., Devise, ch. 9, sec. 22; Paramore v. Yardley, Plowden, 541; Anonymous, Cro. Eliz., 9; Coke v. Bullock, Cro. Jac, 49. If a thing be given in one part of a will to one and in another part to another, the devisees shall take in moieties. Edwards v. Symons, 6 Taunt., 361.

I shall not attempt astutely to assign the reasons of these conflicting opinions; nor shall I vainly attempt to reconcile them. Distinguished jurists of modern times, with all the wisdom of former ages and all the lights of experience before them, have sanctioned the opinion expressed in Plowden, that the devisees shall take in moieties, rejecting the old doctrines, that the devises are void for uncertainty, and that the latter devise is a revocation of the former. I shall adopt the modern opinion, and declare that these legatees take in moieties; solacing myself with...