Lockhart v. Lockhart

• Decision Date: 30 June 1857
• Citation: 3 Jones 205,56 N.C. 205
• Court: North Carolina Supreme Court
• Parties: JOSEPH G. LOCKHART v. BENJAMIN LOCKHART, administrator, and others.

3 Jones Eq. 205

56 N.C. 205

JOSEPH G. LOCKHART

v.BENJAMIN LOCKHART, administrator, and others.

Supreme Court of North Carolina.

June Term, 1857.

Where a testator, in one part of his will, uses words which describe certain objects of his bounty as a class, and in another part of the will refers to them by the same words of description, the presumption is that, in both instances, he uses the words in the same sense, and in both instances intends them to take as a class.

PETITION to rehear a cause.

The petition was to rehear the cause for the purpose of modifying a decree which was made erroneously at the Spring Term, 1856, of the Court of Equity of Northampton county. The primary object of the bill in this cause, was to have a partition of certain slaves bequeathed to the plaintiff and to defendant Benjamin F. Lockhart, and the children of Joseph J. Lockhart, by the will of Sarah Lockhart; and a decree to that effect was passed by Judge Person at the Spring Term, 1856, wherein it was adjudged and decreed, that the children of Joseph J. Lockhart, were entitled to take the said slaves per capita with Benjamin and Joseph G. Lockhart; that is, that they should take, together, three fifths of the same, while the plaintiff, Joseph G., and the defendant, Benjamin F., should take but one fifth each; whereas, it is insisted by the plaintiff, the proper mode of division would have been for the children of Joseph G. Lockhart to take, together, one third of the said slaves, allowing to Benjamin and Joseph G. one third each.

The petition was set for hearing, at the Spring Term, 1857, of the Court of Equity of Northampton, and sent to the Supreme Court by consent.

The following are the two clauses in the will of Sarah Lockhart, upon which the question in the cause arises, viz:

“Item 2nd. I give unto the children of my deceased son, John J. Lockhart, the following named slaves and their increase, Amis, Cherry and Peter.

Item 5th. It is my will, after paying my just debts, that all my property of every kind and description not disposed of in the above items of this will, be equally divided between the children of my deceased son, John J. Lockhart, and my sons Benjamin F. Lockhart and Joseph G. Lockhart.”

Of the property mentioned in the latter item, a large part of it consisted of slaves, who are the main subject of this controversy.

B. F. Moore, for the plaintiff .

Badger, for the defendants .

PEARSON, J.

In Bivens v. Phifer, 2 Jones' Rep. 436, some pains are taken to collate the cases upon the subject of taking “ per capita” and “ per stirpes. ” The general rule is admitted to be that legatees take per capita. But an exception is made “if there be any thing in the will indicative of an intention that they shall take as families.” When such an intention is indicated as to all or a part of the legatees, the division will be per stirpes. For reasons there given, the case was held to fall under the exception. So, Lowe v. Carter, 2 Jones' Eq. Rep. 377, is held to fall under the exeeption. So, Gilliam v. Underwood, 56 N.C. 100, is held to fall under the exception.

The principle to be deduced from these last two cases is this: Where a testator in one part of his will uses words in a sense about which there can be no mistake, and the same words are used in another part of the will, the presumption is that he uses them in the same sense. So, where in one part of...