Redmon v. Burroughs

• Decision Date: 31 January 1869
• Citation: 63 N.C. 242
• Court: North Carolina Supreme Court
• Parties: W. T. and J. K. REDMOND v. JOHN BURROUGHS Ex'r. and others

63 N.C. 242

W. T. and J. K. REDMOND

v.JOHN BURROUGHS Ex'r. and others

Supreme Court of North Carolina.

January Term, 1869.

A testator bequeathed to a certain boy $2,000, to be put at interest for the purpose of educating him; and having survived the making of his will twelve years, the boy (who in the interval had received little or no eduaction) at his death was a married man of about twenty-four years of age: held, that the legatee was entitled to the legacy, and that the fact, that during his boyhood he refused to go to school, made no difference.

The devisee of a tract of land, which, by direction of the testator, had been levied upon to satisfy a debt, and was still bound by the levy at the death,-- having paid the debt, was entitled to be subrogated to the claim of the creditor against the personal estate of the testator.

“Next of kin,” in a will, means nearest of kin.

( Jones v. Oliver, 3 Ire. Eq. 369; Simmons v. Gooding, 5 Ire. Eq. 382, cited and approved.)

BILL, for certain legacies, dismissed, pro forma, by Tourgee, J., at Fall Term 1868, of the Court of Equity for ORANGE; whereupon the plaintiffs appealed.

The bill alleged that one William N. Pratt, late of Orange county had died in 1867, leaving a large estate of personalty and realty which he disposed of by a will dated in 1855, and duly proved by the defendant Burroughs as executor; that by the will, among other things he gave to the plaintiff W. T. Redmond, several tracts of land, a gold watch and other articles of personal property, and also (as follows) “the sum of $2,000, to be put at interest for the purpose of giving him a classical education. It is my desire that said $2,000 shall be thus expended, and that he shall take his course at the University of North Carolina. The residue of my estate, I leave to be sold and the proceeds to be divided between my next of kin, share and share alike, with the exception that Caroline Barbee shall share equally in the aforesaid proceeds with my next of kin;” that before the testator's death an execution had been levied upon the land devised to W. T. Redmond, which having been exposed to sale after his death under a ven. ex., the devisee bid it off at the amount of the debt,--and upon that account is entitled to be reimbursed out of the residue of the personal estate of the testator, under the doctrine of subrogation; that the executor refuses to pay said W. T. Redmond the $2,000 bequeathed as above; that the legatee was a boy of about eleven years of age when the will was written, and is now about twenty-four, and a married man, having in the interval received only a common English education; that the executor also refuses to deliver certain horses and other legacies of personal property bequeathed to the plaintiffs.

The defendant Burroughs answered, admitting the material allegations of the bill, and insisted that the plaintiff W. T. Redmond, is not entitled to the $2,000, because he is now past the age at which it could be applied as intended, and besides that whilst a boy he had refused to be educated, and had run away from a classical school to which the testator had sent him.

Some of the other parties raised a question (preliminary to the taking of the accounts of the estate) upon the meaning of the word “next of kin,” in the residuary clause of the will.

Phillips & Battle, for the plaintiffs , cited Whedbee v. Shannonhouse, Phil. Eq. 283.

W. H. Battle, for some of the defendants .

1. W. T. Redmond is not entitled to the $2,000. Lefler v. Rowland, Phil. Eq. 143; Livermore v. Carter, 4 Ire. Eq. 59, compared with Harris v. Hearne, 2 Win. 92.

2. The words “next of kin” include all who are such by representation. Technical words are to be taken in a technical sense, unless the context show to the contrary. Rogers v. Brickhouse, 5 Ire. Eq. 304; Grandy v. Sawyer, Phil 9; Cooper v. Cannon, Ib. 83; Harrison v. Ward, 5 Ire. Eq. 236. The cases, Jones v. Oliver, 3 Ire. Eq. 369; Simmons v. Gooding, 5 Ire. Eq. 382; Elmsley v. Young, 2 Myl. & K., 780, are only in appearance to the contrary. See also Davenport v. Hassel, Bus. Eq. 29, and 2 Jarm. Wills, 45, 46.

Bragg, for others of the defendants .

1. “Next of kin” means, nearest of kin; Jones v. Oliver, Simmons v. Gooding, Harrison v. Ward, above.

2. As to W. T. Redmond's legacy for education, Livermore v. Carter, above, and Holt v. Hogan, 5 Ire. Eq. 82.

READE, J.

1. The testator bequeathed to “W. T. Redmond $2,000, to be put at interest for the purpose of giving him a classical education” with the direction “that said $2,000 shall be expended, and that he shall take his course at the University of North Carolina.”

W. T. Redmond was some eleven years of age at the date of the will, and the testator lived some ten or twelve years thereafter. W. T. Redmond never received the education designed for him (although the testator did send him to school until he received the rudiments of an English education,) and the $2,000 was never expended. He is now a grown man with a family. And thence the defendants insist that as the sole purpose of the bequest was to educate W. T. Redmond, and as that purpose cannot now be effected, the bequest fails. There would be much force in this view, if there were any limitation over of the legacy upon the failure to effect the...