M'Kay v. Hendon

• Decision Date: 31 May 1819
• Citation: 7 N.C. 21
• Court: North Carolina Supreme Court
• Parties: ARCHIBALD M'KAY, Guardian, &c., v. WILLIAM HENDON.

7 N.C. 21

ARCHIBALD M'KAY, Guardian, &c.,

v.WILLIAM HENDON.

SUPREME COURT OF NORTH CAROLINA

MAY TERM, 1819.

From, Bladen.

A. by his will, directed certain negro slaves to be divided between his three children, William, Mary and Sarah, when either of them should come of age, or sooner, if the executors found it necessary; and then declared, "that if either of the said children should die under age, without heirs, then that share should be divided between the other two children." Mary died under age and without issue. William then died, leaving Sarah of the whole blood, and two brothers and a sister of the half blood, of the maternal side. The part of Mary's share which accrued to William upon her death, does not survive to Sarah, but goes to her and to the brothers and sisters of the half blood.

The rule is, that where legacies are given to three or more persons as tenants in common, with a bequest to the survivors upon the death of any of them within a given period, the original legacies only, and not the shares which accrued by survivorship, will survive.

The only exception to the rule is, where the fund is left as an aggregate one, and made divisible among many persons as legatees, with benefit of survivorship among them.

The question upon this case arose upon the following clause in the will of Richard Salter. "I give my other negroes, young Cato, Peter, Dinah, Mary, Anne, and Diana, tobe divided between my three children, William, Mary and Sarah, to them, their heirs and assigns forever, to be divided when either of them comes of age, or sooner if my executors should find it necessary: and my will is, that if either of my said children should die under age, without heirs, then that share to be divided between the other two children." The testator left his wife Nancy and three children, William, Mary and Sarah, him surviving. Nancy, the widow, intermarried with Archibald McKay, by whom she had issue, Alexander, John and Eliza. Mary, one of the children of Richard Salter, then died, a minor and without issue. Afterwards, William, another child of the said Richard Salter, died, a minor and without issue. The petitioners, Alexander, John and Eliza McKay, children of Nancy by her second husband, Archibald M'Kay, filed this petition by their father, who had been appointed their guardian, against the representative of Richard Salter, for an account and distribution of the legacies given to Mary and William Salter; either under the will of his father,

or by the death of his sister Mary ? And if so, to what part ?— And the case having been sent to this Court for the opinion of the Judge,

TAYLOR, Chief-Justice: The brothers and sisters of the half blood of the maternal side to William Salter, who died intestate, have filed this petition by the guardian, to obtain an account and distribution of the part of the intestate's personal estate, which he acquired under the will of his father, Richard Salter. The three children of the testator survived him, and afterwards, Mary died under age and without issue, leaving of the whole blood, her brother William and her sister Sarah; and of the half blood, Alexander and John, her brothers, and Eliza, her sister, surviving: Then William died under age, and without issue, leaving the preceding brothers and sisterssurviving.

It may be conjectured, that the testator meant to confine his. bounty to his three children and their descendants, if they should have any: And that upon the death of two under age and without children, the whole of the negroes should belong to the surviving brother and sister: That while any one of his children was alive, no other collateral relation of those who were dead should share with the survivor; and least of. all, could the testator contemplate that the children of his widow by a future husband should be entitled to share with the surviving child. If a Court were at liberty to judge of the testator's intention, deduced from circumstances out of the will; and by giving to -words in the will a construction in opposition to that which has been affixed to them by a series of decided cases, the considerations which have been mentioned, might probably in this, as well as in other instances, meet the justice of the case: but then it would put an end to the certainty of the law and the security of property. For while Judges may find out by industry the rules of interpretation established by law, their speculations, as to the intent of the testator, may differ; no legal opinion could be given...