Vass v. Freeman

• Court: North Carolina Supreme Court
• Writing for the Court: BATTLE
• Citation: Vass v. Freeman, 3 Jones 221, 56 N.C. 221, 69 Am.Dec. 734 (N.C. 1857)
• Decision Date: 30 June 1857
• Parties: WILLIAM W. VASS, Adm'r., v. HARRIET FREEMAN, Executrix.

3 Jones Eq. 221

56 N.C. 221

69 Am.Dec. 734

WILLIAM W. VASS, Adm'r.,

v.HARRIET FREEMAN, Executrix.

Supreme Court of North Carolina.

June Term, 1857.

Where slaves, or other property, are bequeathed to two or more persons immediately, as tenants in common, with a limitation over to the survivors, or in case that one or more of them die, it is settled that unless the contrary intent appear from other parts of the will, those who survive the testator will take absolutely.

But where, from special circumstances and express words in other parts of the will, it appears that the testator referred to a survivorship to take place between legatees after his death, the above general rule does not prevail.

Where A gave a joint estate, for life, to his mother and sister, with an absolute estate to the survivor, expressing a belief that he would soon die, and that these two objects of his bounty would survive him--appointing them his executrices--giving them minute instructions as to the management of the estate and the selection of their agents--their place of residence, and cautioning them against imposition, it was Held that the testator meant to give the property to the survivor of the two who should become so by the death of one of them after his death.

CAUSE removed from the Court of Equity of Wake county.

The bill was filed to recover a legacy bequeathed to Amanda G. Freeman in the will of William G. Freeman. The following are the material clauses of the said will, bearing upon the question:

“3rd. I give and bequeath to my mother, and Amanda G. Freeman, the whole of my estate, jointly, and upon the demise of either, the survivor to have the whole in fee simple, forever.”

After describing the situation of his mercantile effects and funds deposited in several places, the will proceeds, “and my negroes, perhaps they had better keep, and my goods, perhaps they had better dispose of on as good terms as they can. They were purchased for cash, and perhaps can be disposed of with advantage to the purchaser and my estate, which disposition can be public or private; but I would not advise them to carry on the business, as they know nothing about it, and would likely be prejudiced in the financial affairs; but think my mother and sister might qualify as my executrix, and employ William T. Dortch to settle the business up for them as their agent. In consideration of the persons, I now nominate my mother, Harriet Freeman, and sister Amanda G. Freeman, my executrixes, to execute and carry out my will in as full and ample a manner as I could, were I personally present.” He then notices that his brother Bryan had left a child, but declares, in violent terms, his unwillingness for that child to have any part of his estate. The will then proceeds: “Perhaps it would be best for mother and Amanda to invest the bonds, notes and accounts, &c., in State bonds, if you could do so, as it would be a safe investment, and you could get the interest semi-annually. I do not know what to advise relative to living. Perhaps you prefer going to Raleigh to live, or perhaps to Franklin; but exercise your own discretion and will as to that.”

He then suggests that many persons may affect a sympathy, “and want to marry Amanda,” but he advises them to repel all such advances, and to consult their lawyer as to their affairs.

Both the executrices qualified, and undertook the burthen of administering the estate.

Amanda, the sister, mentioned in this will, intermarried with the plaintiff and died about a year afterwards, and the plaintiff took out letters of administration on her estate.

The plaintiff contends, that by the provisions of the said will, the limitations over on a death, are confined to a period within the life of the testator, and that on his death the interests of the legatees became absolute, and that as the administrator of Amanda, he is entitled to the personal estate bequeathed to her, and that by the jus mariti, he is entitled to hold the same. The prayer is that the defendant, as executrix, account and pay the said legacy to him.

The defendant answered, not disputing the facts, but insisting on the whole estate as belonging to her, claiming that of Amanda by survivorship.

The cause was set down for hearing on the bill, answer and exhibit, and sent to this Court.

B. F. Moore, for the plaintiff .

Phillips and Green, for the defendant .

BATTLE, J.

When slaves or other personal chattels are bequeathed to two or more persons, immediately, as tenants in common, with a limitation over to the survivors or survivor, if, or in case that, one or more of them die, it is settled that, unless a contrary intent appear from other parts of the will, those who survive the testator will take absolutely. The rule which thus refers the period of survivorship to the death of the testator, was first laid down by Lord Chancellor Cowper in the case of Lord Bindon v. The Earl of Suffolk, 1 Peere Will. 99, was followed by many cases in England, and has been recognised in this State in the cases referred to by the plaintiff's counsel, of Hogg v. Cox, 2 Dev. Eq. Rep. 121; Hilliard v. Kearney, Busb. Eq. Rep. 222; and Biddle v. Hoyt, 1 Jones' Eq. Rep. 159. The reason of the rule is given by sir JOHN LEACH Vice Chancellor, in Allen v. Farthing, (reported in 2 Jarman on Wills, 688, 689,) “that where a testator refers to death simply, the words are necessarily held to mean death in his (the testator's) life-time, the language expressing a contingency, and death generally being not a contingent event.” If there be any time subsequent to the death of the testator, to which the period of survivorship can be referred, as, for instance, the death of a tenant for life, or the time when the property is to be divided, that will be adopted instead of the death of the testator, unless a special intent to the contrary can be found in the will. This was decided by Sir JOHN LEACH in Cripps v. Walcott, 4 Madd. Ch. Rep. 11, and has been sustained by many subsequent cases in England and this State. See 2 Jar. on Wills, 648; Biddle v. Hoyt, ubi supra. Analogous to these cases of survivorship, are those where bequests are made to a person, with a limitation over in case of his death. The question is whether the testator uses the words “in case of” in the sense of at or from, so as to restrain the prior bequest to a life-estate with a remainder over, or uses them to substitute another bequest in lieu of the prior one, should that fail by the death of the first legatee in the life-time of the testator. “The difficulty in such cases, (says Mr. Jarman,) arises from the testator having applied terms of contingency to an event, of all others, the most certain and...