Starbuck v. Starbuck
| Decision Date | 31 October 1885 |
| Court | North Carolina Supreme Court |
| Parties | D. H. STARBUCK Ex'r, et al. v. T. C. STARBUCK et al. |
The executor of Reuben Starbuck, filed his petition in the Superior Court before the clerk of Guilford county, for the final settlement of the estate, alleging that on account of the disagreement of the legatees, as to the proper construction of the will, that it was necessary that the Court shall construe the will, and direct his distribution of the fund amongst the legatees.
The executor asked for several instructions on several points. Defendant, T. C. Starbuck, answered, alleging that the legatees in item 4th were adeemed by the testator.
The defendants Wheeler and wife and Horney, answered, denying the ademptions, and claiming one-third of the fund in item fourth, or so much thereof as the law allows.
The issues of law and fact were certified to the Superior Court at Term, and came on for trial before Shepherd, Judge, at Spring Term, 1885, of GUILFORD Superior Court, on the question of law raised on the complaint by the executor himself, as to the construction of the will, as set forth by him and by the answers.
The fourth item of the will of the testator of the plaintiff, provides as follows:
This was changed and modified by a codicil dated 22d day of February, 1875, as follows: * * * * “and that the division in said fourth item of said will shall be made into five shares instead of four shares, so that my son Uriel's said children shall come in for one-fifth part of the division in said item four.”
It appeared that the testator in his lifetime received the whole of the purchase money mentioned in the item of the will above set forth prior to the year 1875, and deposited the same in the First National Bank of Salem; that afterwards, in 1879, he withdrew the deposit and invested the money in four per cent. United States bonds; and afterwards he sold these bonds, and with the proceeds of the sale purchased bank stock of the Wachovia Bank.
His Honor, upon consideration, held that the legacies in item fourth were not adeemed, and that they were payable out of the Wachovia Bank stock. Defendant T. C. Starbuck excepted. His Honor then rendered a judgment construing the will, from which judgment defendant T. C. Starbuck appealed to the Supreme Court.
Messrs. Scott & Caldwell, for the appellants .
Mr. J. H. Dillard, for the appellees .
A legacy is specific when the thing bequeathed is personal property specified and so designated as that that particular thing, and no other in its stead, must pass to the legatee. The legacies referred to were specific. The money designated by definite terms was itself bequeathed--that identical money and no other; they were not each for a sum fixed, to be paid out of the fund called “the purchase money of my old home plantation,” &c., but they give and embrace that, and only that, money.
Specific legacies are said to be adeemed, when in the lifetime of the testator, the particular thing bequeathed is lost, destroyed, or disposed of, or it is changed in substance or form, so that it does not remain at the time the will goes into effect in specie, to pass to the legatees. If the subject matter of such legacies ceases to belong to the testator, or is so changed as that it cannot be identified as the same subject matter, during his lifetime, then they are adeemed--gone--and never become operative. This is so, because the thing given is gone, and nothing remains in that respect upon which the will can operate. Snowden v. Banks, 9 Ired., 373; Tayloe v. Bond, Busb. Eq., 5; Anthony v. Smith, Busb. Eq., 188; Walton v. Walton, 7 John Ch. R., 258; Williams on Ex'rs, 1132; Redfield on Wills, Pt. 2, 528.
There has been much diversity of judicial decision as to what...
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