Ford v. Whedbee

• Decision Date: 31 December 1834
• Citation: 21 N.C. 16,1 Dev. 16
• Parties: CHARLES M. FORD v. JAMES P. WHEDBEE, et al.
• Court: North Carolina Supreme Court

1 Dev. & Bat.Eq. 16

21 N.C. 16

CHARLES M. FORD

v.JAMES P. WHEDBEE, et al.

Supreme Court of North Carolina.

December Term, 1834.

A legacy to the wife of the testator, payable two years and three months after his death, during which time land for a residence was devised to her, and the executor was directed to sell other land, so as to have the money ready to pay her at the expiration of that time, and which was expressed to be in lieu of her dower, upon her death before the time of payment, survives to her representative.

THE plaintiff set forth the will of James Whedbee, of which the following parts only need be stated. “I give unto my beloved wife Jane J. Whedbee, all the property that came to me by her in marriage: that is to say, all the household and kitchen furniture, &c. (repeating the particulars at length.)

“I give unto my beloved wife for her year's support, one hundred and fifty barrels of corn, &c. (repeating a variety of articles of ordinary household consumption.) I leave her the plantation and buildings either where I live, or where my son Lemuel Whedbee lived and deceased, for the full space of two years and three months, at the expiration of which time, my administrator is herein directed to pay out of my estate one thousand dollars, the one half cash, the other half in good and safe obligations then due, and no other. To raise that sum of money, he shall be at liberty to sell all the land which, &c. (describing it,) which he may sell as soon after his qualification as time will admit, upon the longest credit that can be given, so as to have the money ready for her use, immediately after the two years and three months is expired. Which said thousand dollars is to be to her a full satisfaction for, and in lieu of her taking thirds out of my land.” The testator then gave to his son, James P. Whedbee, property which he particularly described, and estimated to be worth nine thousand dollars, and proceeded as follows: “all of which will include all, and every part of my estate, intended, meant, and allotted to him, as the whole of his portion thereof.”

After making a provision for his grandson James N. Whedbee, the testator proceeded: “all of which is to complete his share of my estate, unless the death of some one or more of his connexions should entitle him to heir from them.”

The bill after setting forth these parts of the will, charged that there being no person appointed executor, administration with the will annexed had been committed to the plaintiff; that the plaintiff in the execution of his office had experienced great difficulty, and he prayed that his administration might be conducted under an order of the Court.

In explanation of the difficulties he had encountered, the plaintiff stated that Jane J. Whedbee, the widow of the testator, died before the expiration of two years and three months after his death. That her administrator (who was a defendant,) claimed the legacy of one thousand dollars, but that the next of kin of the testator, insisted that the legacy was contingent, and had failed in conseqnence of her death before it fell due. Upon this subject the plaintiff prayed a declaration of the opinion of the Court.

Another question which arose, was, how the surplus should be divided, there being no residuary clause in the will. The widow claimed to be entitled to a share of it, but her claim was denied by the next of kin, who insisted she was only entitled to that provision which the testator had made for her, as she had not dissented from the will. Among the next of kin a question also occurred, there being six of them, four contended that it should be divided between them, as the testator had expressly excluded James P. and James N. Whedbee, while the latter, the two Whedbees, contended, that as the testator had not disposed of the residue, it was to be distributed by law, and that a distribution by law included them. The plaintiff also stated that he had been appointed guardian to Joseph Nauby, who had been the ward of the testator, and that difficulties had arisen in stating the account between the infant and the testator, and he prayed that it might be settled under a reference made by the Court.

The several answers admitted the allegations of the bill to be true.

Badger, for the plaintiff .

Iredell and Devereux, for the administrator of the widow .

Kinney, for James P. and James N. Whedbee .

GASTON, Judge.

This bill is filed by the administrator with the will annexed of James Whedbee, to obtain the advice of the Court on several questions arising under the will of his testator, which are likely to produce controversies, and delay a settlement of the estate. The first of these is, whether the bequest of one thousand dollars to the testator's wife be a vested or contingent legacy. Questions of this kind are frequently very perplexing, and with a view to the determination of them with uniformity, the Courts have established rules involving refined and almost verbal distinctions, but all designed to eviscerate and to execute the intention of the testator. If it be his purpose to pass an immediate interest to the legatee, postponing only the time of enjoyment, then is the legacy vested. But if it be to render the title to the legacy dependent on the event of the legatee being in a condition to receive it when due, the legacy is contingent. The will which we are called upon to expound is exceedingly inartificial and untechnical in its language, and calls for the indulgence of a liberal criticism. The intention of the testator in any particular disposition is frequently not to be collected but by a careful examination of the entire clause containing it, and sometimes, indeed, not without a comparison of different clauses. It commences with making a suitable provision for his wife, and it is apparent that the testator had in view the provision which the law would make in case he died intestate, and substitutes for it...