Scales v. Scales

• Decision Date: 31 December 1860
• Citation: 6 Jones 163,59 N.C. 163
• Parties: CHARLOTTE C. SCALES, Executrix, v. PETER SCALES AND OTHERS.
• Court: North Carolina Supreme Court

6 Jones Eq. 163

59 N.C. 163

CHARLOTTE C. SCALES, Executrix,

v.PETER SCALES AND OTHERS.

Supreme Court of North Carolina.

December Term, 1860.

Courts of equity will not anticipate and decide questions, which cannot be attended with any present practical results.

Where a testator bequeathed certain of his property, specifically, and then provided, “the balance of my estate to be sold and the proceeds divided among my children hereinafter named,” it was held that the bonds, notes and accounts due the testator, and the cash on hand, were not embraced by this clause.

A legacy to a grand-daughter, who died before the will was made, is void.

CAUSE removed from the Court of Equity of Rockingham county.

The bill is filed by Charlotte Scales, the executrix of the last will and testament of James Scales, deceased, and prays the aid of the Court in construing the said will, which is as follows: “First. I give unto my beloved wife, Charlotte C. Scales, the tract of land, whereon I now live, containing eight hundred and five acres, for and during her natural life, or so long as she may continue a widow, but in case she marries again, to have one-third part thereof; also, I lend her the following negroes, during her life, to wit, Daniel, Smith, John, Leathy, Aggy, America, and each of their youngest children, Mitchell, Pinckney, Henry and Granville, three head of horses, four cows and calves, six beef cattle, twenty head of hogs,” &c., * * * and after the death of my wife, I give the said tract of land to my three youngest children, Elizabeth, Susan and Nicholas Dalton, to be equally divided between them.

2nd. I give to my sons, Peter and Hamilton Scales, the tract of land Peter now lives on.

Item 3rd. I give to my son, Peter Scales, three negroes, Martha, Charles and York.

Item 4th. I give to my son, James Scales, two negroes, Peggy and Sabry, and four hundred dollars.

Item 5th. I give to my son, Hamilton Scales, three negroes, Joseph, (jr.) Frank and Alexander.

Item 6th. I give to my son, Rawley Scales, three negroes, Burch, Biddy and Sam.”

In the succeeding clauses of the will, the testator gives a number of specific legacies of slaves and several pecuniary legacies. The 13th Item is as follows: “I give to my two grand-daughters, Mary Ellington and Lucy V. Irwin, one hundred and fifty dollars each.” The will then concludes as follows: “My will and desire is, that the balance of my estate, not disposed of, be sold, and the money equally divided between my children, hereinafter named, to wit: Peter, James, Hamilton, Robert, Rawley, Elizabeth, Nicholas D. and Susan, after deducting as much as will pay for a tombstone for my grave, containing my name and age; also, the negroes and other property loaned to my wife, during her life, after her death, be sold, and the money equally divided between all my children, agreeable to law; and lastly, I constitute and appoint my beloved wife, Charlotte C. Scales, my executrix, of this my last will and testament.”

The bill prays to be instructed: Firstly. Whether the plaintiff, Charlotte C. Scales, takes absolutely, the horses, cows and calves, beef cattle, hogs, money, &c., given her in the first item of the will, or whether she takes only a life-estate, and if the latter, then how far she may become responsible for such as shall be consumed or lessened in value, by the use.

Secondly. Do the bonds, notes and accounts due the testator, and the cash on hand, fall into the residuary fund, created by the last clause of the will? or did the testator die intestate as to them?

Thirdly. The bill sets out that Mary Ellington, to whom the testator bequeathed a pecuniary legacy of one hundred and fifty dollars, by the 13th clause of his will, died before said will was made, leaving several children surviving her, and it prays the advice of the Court, whether this legacy vested in her children, as the representatives of their deceased parent, or did the testator die intestate as to this fund? or does it...