Marrow v. Marrow

• Decision Date: 30 June 1853
• Court: North Carolina Supreme Court
• Parties: DANIEL J. MARROW v. DRURY S. MARROW, EXECUTOR, AND OTHERS.

45 N.C. 148

DANIEL J. MARROW

v.DRURY S. MARROW, EXECUTOR, AND OTHERS.

Supreme Court of North Carolina.

June Term, 1853.

A testator, leaving a wife and six children, made the following provisions for them by will:--“I give and bequeath to my loving wife, as long as she is single after my death, all my property, real, personal and mixed. I wish the negroes kept on the plantation if manageable; if not, I wish my executors to hire them out privately to honest, humane men. My children I wish educated from the proceeds of the plantation and funds in hand. When my eldest son arrives at legal age, I wish him to have a distributive share of the estate, and my other children, when they shall have arrived at the same age, I wish them to have a like share with their eldest brother, provided the estate has retained or accumulated property in the mean while. Should my wife marry again, I wish her to have what the laws of her country will allow her, viz.: one-third of the estate. If she remains single till her death, I wish my children to be made equal in their several lots of my estate; and if she marries and deducting her portion, then a like share of the residue:”--

Held, 1, That the children are all entitled to be maintained and educated out of the profits of the estate, free of charge, and when they respectively arrive at the age of twenty-one years, they will be entitled to their respective shares, without being required to account for the expenses of their maintenance and education.

2. That the expenses of the maintenance and education of the children are to be paid out of the profits of the plantation, and the interest of the funds on hand.

3. That the term “funds on hand” means cash on hand, and money due the estate by bond, note or other security; and that the children are respectively to receive such an education as is suitable to their estate and condition in life.

4. That the widow is entitled, while she remains single, to all the issues, rents, profits and interest of the estate, so far as the same may be necessary in the first place, for her decent support, and then she is entitled to all that remains after the proper maintenance and education of the children.

5. That the children, until they shall respectively come of age, are entitled to nothing out of the estate but what is necessary for their maintenance and education.

6. Each child on coming of age will be entitled to one-sixth part of the capital of the whole estate, after deducting the widow's dower in the land, and a child's part of the personal property, to wit, one-seventh.

7. The share now due to the child who has come of age, is to be allotted to him absolutely, and he cannot hereafter be called upon to refund any part thereof.

8. The executor must permit the widow to retain possession of all the estate, except such part as may from time to time be allotted to the children, as they respectively come of age.

Held, also, That the testator intended that his widow, in case she married again, should have dower in his lands, and a child's part of all the personal estate absolutely.

In construing wills, the Court will confine its opinion to things to which it can give effect by a decree, and will not speculate upon questions in which the parties may never be interested.

(The case of Tayloe v. Bond, 45 N.C. 5, cited and approved.)

THIS cause was removed to this Court from the Court of Equity for Granville county, at Spring Term, 1853.

The case is stated in the opinion of the Court.

Lanier, for the plaintiff .

No counsel in this Court for the defendants.

BATTLE, J.

Thomas F. Marrow died in the year 1846, having first duly made and published his last will and testament, which, after his death, was admitted to probate, and Drury S. Marrow, one of the executors therein named, qualified as such, and took upon himself the burden of its execution. The testator, in and by his said last will and testament devised and bequeathed as follows:--“I give and bequeath to my loving wife, as long as she is single after my death, all my property, real, personal and mixed. I wish the negroes kept on the plantation if manageable, if not, I wish my executors to hire them privately to honest, humane men. My children I wish educated from the proceeds of the plantation and funds on hand. When my eldest arrives at legal age, I wish him to have a distributive share of the estate, and my other children, when they shall have arrived at the same age, I wish them to have a like share with their eldest brother, provided the estate has retained or accumulated property in the mean while. Should my wife marry again, I wish her to have what the laws of her country will allow her, viz., one third of the estate. If she remains single till her death, I wish my children to be made equal in their several lots of my estate; and if she marries and deducting her portion, then a like share of the residue.” The testator left at his death surviving him, his widow Parthena and six children, all of whom were then minors, to wit: Daniel J., William D., Thomas F. H., James A., Drury S. and Ann E. Marrow, and was seized and possessed of a valuable estate, consisting of two tracts of land, thirty or forty slaves, cash on hand, debts due him, household and kitchen furniture, stock of divers kinds, farming utensils, &c. After the testator's death, Drury S. Marrow, by virtue of his executorship, took into his possession the personal estate, paid the debts and other charges against the estate of the deceased, and kept the slaves together and worked them upon the plantation, with the exception of a few whom he hired out, and two whom he sold for their bad conduct. The executor received from year to year the interest, issues, hires, profits and rents of his testator's estate, and applied the same to the support of his widow and children, and to the education of the latter, for which purposes they were more than sufficient, leaving a considerable surplus to accumulate in his hands.

The bill was filed June 28th, 1853, in the Court of Equity for Granville county, by Daniel J. Marrow, against the executor, the widow and the other children of his father, in which he set forth the facts above stated, and further that he had come to the age of twenty-one years, and he prayed to have the share of the estate, real and personal, to which he was entitled under his father's will, assigned to him. But he alleged that doubts and difficulties had occured in the construction of said will, upon which the parties interested under it desired to have the advice of the Court.

These doubts and difficulties were set forth in the bill in the following terms:--

1. “It is uncertain, whether the respective children of the said testator are entitled to be maintained until they respectively arrive at the age of twenty-one years and to be educated out of the said estate free of charge, or, whether the expenses of their respective maintenance and education as aforesaid, are to be charged to and accounted for by them respectively, in alloting and paying over to them respectively their respective shares of the said estate.

2. It is also uncertain, in that part of the said will which directs that the children of the testator shall be educated out of the proceeds of the plantation or funds on hand, whether it means out of the funds on hand, or out of the proceeds or interest of the funds on hand.

3. It is also uncertain what is the meaning of the expression or term “funds on hand,” as whether the same mean only cash on hand at the testator's death, or include other, and what other effects; whether the testator's children are to be maintained, as well as educated, out of the proceeds of the plantation and funds on hand, and if educated only, then in what way, and out of what part or parts of said estate, they are to be maintained; and whether, in case what is intended by the expression “funds on hand,” should be, or become insufficient with the proceeds of the plantation for the education, or the maintenance and education of the testator's children, the proceeds arising from the sale of any part of the testator's perishable property or any other, and what other part or parts of the said estate may be applied to that purpose.

4. It is also uncertain, whether the testator's widow is entitled to the whole of the issues, interest, hires, rents and profits of the said testator's estate during her life or widowhood, or only to be maintained out of the same, and if not to the whole, or to a maintenance only out of the same, then, to what part of the same she is entitled, and whether, in the division of the estate in case she should marry again, she should be charged with and account for the expenses of her maintenance aforesaid.

5. It is also uncertain, whether the children of the testator are entitled to any part, and what part of the interest, issues, hires, rents and profits aforesaid, further than to be maintained, or educated and maintained out of the same as aforesaid.

6. It is also uncertain, whether in case any of the said children should die before arriving at the age of twenty-one years, the real or personal representatives of said child, would be entitled to any and what part or share of the said real and personal estate, or of the said interest, issues, hires, rents and profits of the same, and if not, then whether the said widow would become entitled under said will, in case of her marrying again, to any part of the share of the said real or personal estate to which such child would be entitled, if attaining the age of twenty-one years.

7. It is also uncertain, what share or portion of the said real and personal estate ought to be allotted to the said children respectively, as they respectively become of age, and whether in case a full share of the same should be allotted and paid to one of the...