Pollard v. Pollard

• Court: North Carolina Supreme Court
• Writing for the Court: SMITH
• Citation: Pollard v. Pollard, 83 N.C. 96 (N.C. 1880)
• Decision Date: 30 June 1880
• Parties: J. A. POLLARD, Executor, v. ELIAS POLLARD and others.

83 N.C. 96

J. A. POLLARD, Executor,

v.ELIAS POLLARD and others.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION tried at Spring Term, 1880, of PITT Superior Court, before Avery, J.

This action was brought by the plaintiff as executor of Benjamin Pollard to obtain a construction of the last will and testament of his testator. The facts are set out in the opinion. The plaintiff appealed from the ruling of the court below.

Messrs. J. B. Yellowley and J. B. Batchelor, for plaintiff .

Messrs. Latham & Skinner, for defendants .

SMITH, C. J.

Benjamin Pollard died in 1877, leaving a will in which he devises the one acre lot on which his dwelling stands to his wife for life, and bequeathes to her an annuity of $150 while she lives, to be raised from the renting of a certain tract of land, and also devises another tract lying on the south side of the road to his daughter Henrietta Coggins, his son Elias Pollard, and his grandson Joseph A. Lewis, “equally to be held by them in common during the life of his wife Phebe,” and then proceeds: “After her death I direct that my executor sell said piece of land, and also the piece herein directed to be leased and let for the benefit of said wife, and the proceeds arising therefrom to be equally divided between my daughter Henrietta, my son Elias, and my grandson Joseph A. Lewis, and their children, the children to take the share of the parent who may die before my death.”

In the concluding clause of his will he says: “I devise the one acre in the same manner that I have the balance of the house tract, or piece that is to be rented, and direct my executor after the death of my wife to sell the said one acre that I have given to my wife for her life-time, and distribute the proceeds in the same manner, to be sold as part and with the said piece that I have directed to be rented out.”

The wife died and the executor has sold the lands described, the proceeds being in his hands, he asks the advice of the court as to the distribution thereof under the will.

The son Elias and the grandson Jos. A. Lewis, are still living, and the daughter, who was living at the testator's death, has since died, and the said Elias has become her administrator. The other defendants are the children of the three legatees named, and the administrator of a deceased child of said Henrietta, who are asserting their respective claims to share in the fund held by the plaintiff, under different interpretations of the will. Three possible constructions are suggested:

1. That the shares go to the legatees mentioned for life and at the death of either, his or her share in remainder to his or her children including representatives of deceased children as aforesaid.

2. The fund is to be distributed per capita among the three named legatees and their children, including among the latter such as were living at the death of the widow, and the representatives of such as were living at the testator's death and died before the life tenant.

3. That the children and grandson take vested estates each one-third, and the children of either who may die before the testator succeed to the share of their deceased parent.

The first construction is inadmissible because it is in conflict with the language employed, or else excludes altogether the concluding clause of the bequest. No succession of estates or interests is indicated in the money fund, into which the land is converted, and which character it bears, in contemplation of the conversion, in the will itself. The bequest is to the children of the share of their parent who may die before the testator himself. They do not succeed at the death of the testator, whenever that event may occur, but only in case their parent dies in his life-time??

The cases called to our attention in support of a construction by which the parent and his children take in...