Bertie County NcArchives Court.....James Williams' Executor, Robert Edens V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 23, 2009, 6:35 pm

Source: Nc Reports
Written: 1819

Robert Edens and Wife and others v. James Williams's Executor

From Bertie

May Term 1819

A. being seized of a tract of land, and possessed of five slaves, made his 
will, and therein lent to his wife, during her life, his land and three of his 
slaves, with his household furniture and stock. He then directed that if his 
wife should be ensient with child, such child should be raised and educated by 
his wife, out of the income of the property left to her, as well as all the 
property he died possessed of. He then bequeathed to his brother's two 
daughters, his other two slaves, to be divided between them when either of 
them should marry; the wife was ensient with child; and one of the brother's 
daughters having married, the Executor was called upon to divide the two 
slaves and their increase between her and her sister.

Held, that upon the construction of the whole will, the brother's daughters 
were not to take, if the wife should prove to be ensient with child: and that 
all the property belonged to the child after the mother's death.

In construing the will, the Court will look to the state of the testator's 
family, and to the kind and extent of property he owned at the time of making 
his will.

Robert Edens and Sarah, his wife, and Elizabeth Williams, an infant, by her 
guardian, filed their bill of complaint in the Court of equity for Bertie 
against John Nichols, executor of the last will of James Williams, late of 
Bertie county, and therein charged that the said James Williams, in his last 
will, which had been duly proved since his death, and of which the defendant 
had been appointed and had qualified as executor, had bequeathed as follows, 
(to-wit) "I give and bequeath unto my brothers two daughters, Sarah and Eliza 
Williams, one negro woman named Esther and her child Harry, to be in the care 
and under the direction of my brother William Williams, until either of them 
marrieth; at which time it is my will and desire, that the said Esther and 
Harry, and the increase of Esther, if any, to be equally divided between them. 
Item—I lend unto my brother William Williams, my silver watch during his life, 
and after his death, I give the said watch to his daughter Sarah Williams, to 
her and her heirs and assigns forever." That the defendant took into his 
possession the properly mentioned in the said bequests; that complainants 
Sarah and Elizabeth were the nieces of the testator mentioned in the will; 
that Sarah had intermarried with Robert Edens; that William Williams, the 
brother of the testator and father of the complainants Sarah and Elizabeth, 
had died; and he being dead and Sarah having married the bill charged that 
complainants were entitled to demand from the defendant the silver watch and 
the negro slaves, mentioned in the aforesaid bequests; that they had applied 
to the defendant for this purpose, and he had refused to deliver either the 
watch or negro slaves, the bill prayed that the defendant might be decreed to 
deliver to the complainants the watch and the negro slaves, and account for 
the hire of the slaves &c.

To this bill, the executor, Jehu Nichols, put in his answer, and therein 
admitted the several allegations of the bill; but alleged that he was advised 
Complainants were not entitled to the watch and negro slaves; for that the 
testator left his wife ensient with child, which was born a few months after 
his death, and was still alive; that the testator had made his will with 
reference to such an event; and that, upon the construction of the whole will, 
he was advised Complainants were not entitled, except in the event that the 
testator's wife had not been ensient with child at the time of his death: and 
he prayed the advice of the Court.

The several clauses of the will referred to by Defendant, in his answer, are 
in the following words: "I lend unto my dear and loving wife, Susannah 
Williams, my plantation, and buildings thereunto belonging whereon I now live, 
during her natural life; also lend her my said wife, all my household and 
kitchen furniture, except two beds and bedsteads, to be sold by my executors; 
also one negro man named Jack, one boy named Daniel, and one negro woman named 
Jenny, and one sorrel mare named Lucilda, and all my stock of cattle and hogs, 
during her natural life, subject only to the provisions hereafter mentioned.

"Item — Provided my said wife Susannah Williams should be now pregnant of one 
or more children, it is my will and desire such child or children shall be 
raised and educated by my said wife out of the income of the property left to 
her, as well as all the property I die possessed of: but if such child or 
children should marry, or arrive to the age of maturity, in my said wife's 
lifetime, the one so marrying shall have an equal share of all my negroes and 
increase, as well as all my other property, except, the lands and buildings 
left to my said wife. But, in case the child or children my wife is suggested 
to be pregnant with should die before marrying or arriving to the age of 
maturity, my wife Susannah Williams shall have the property in manner as above 
left to her during her natural life.

"Item - It is my will and desire that all my property left to my wife, or all 
she shall inherit from my estate, after her death shall be inherited by my 
child or children, or for want of such heirs, as hereafter mentioned.

"Item — I give and bequeath to my niece Sarah Williams, my land and 
improvements thereon, after my wife's death. I also give all the residue of my 
estate left to my wife her lifetime, to be equally divided between my 
brother's two daughters, Sarah and Eliza Williams, to them, their heirs and 
assigns forever.

"Item — I give and bequeath unto my brother's two daughter's, Sarah and Eliza 
Williams, one negro woman, named Esther, and her child Harry, to be in the 
care and under the direction of my brother William Williams, until either of 
them marrieth; at which time it is my will and desire that the said Esther and 
Harry, and the increase of Esther (if any) to be equally divided between them.

"Item — I lend unto my brother William Williams my silver watch during his 
life, and after his death I give the said watch to his daughter, Sarah 
Williams, to her, and her heirs and assigns forever.

"It is likewise my desire, should I not leave money sufficient to discharge 
all my debts, in that case my executors should sell as much of my moveable 
estate, which my wife can best spare, as will make up the residue."

By the Court — Some aid in discovering the intention of the testator may he 
derived from a consideration of the state of his family, and the kind and 
extent of the property he owned at the time of making his will. (1 P. Wms., 
286.—4 Bro., 441.) His family consisted of his wife only; and it cannot be 
presumed that he had any other property than that specified in his will, which 
consisted only of his plantation, household furniture, stock and wearing 
apparel, together with five slaves. Indeed it is almost certain that this 
constituted the whole of his estate; because he directs that in the event of 
his not leaving money enough to pay his debts, such part of his personal 
estate should be sold for that purpose as his wife could best spare.

A man so situate would naturally desire to make a competent provision for his 
wife during her life, and to bestow some present token of his regard upon 
those who were nearest to him in blood, with the prospect, of an accession to 
it upon the death of his wife. But if he thought it probable that his wife was 
then ensient, the natural affection of a parent would prompt him to make a 
provision for his future offspring; and, from a fortune so small, would as 
naturally restrain him from making a deduction in favor of his collateral 
kindred. If this intention can be fairly collected from the will, it is our 
duty to give effect to it, though it may not he expressed in legal and 
technical words.

In the first clause of his will, the testator lends to his wife during her 
life, his plantation, furniture, stock, and three out of five of his slaves; 
and the second clause provides, that if she should then be pregnant with one 
or more children, such child or children shall be raised and educated by his 
wife, out of the income of the properly left to her, as well as all other 
property he dies possessed of: if the child or children should marry or arrive 
at age in his wife's life-time, the one so marrying shall have an equal share 
of all his negroes and their increase, as well as all his other property, 
except the land left to his wife. In the event, of the child or children dying 
before marriage or arrival at age, then the property devolves upon the wife as 
directed in the first clause. The third clause directs that all the property 
left to his wife, as well as all she should inherit from his estate, after her 
death shall be inherited by his child or children, or for want of such heirs, 
as hereafter mentioned. By the fourth clause, he gives the land left to his 
wife, to his niece, Sarah Williams, after the death of his wife: And the 
residue of what he had given to his wife, he directs to be equally divided 
between his brothers two daughters. Then follow the fifth and sixth clauses 
under which the complainants claim the slaves, Esther and Harry, and the 
silver watch. If we apply to the will the ordinary rules of construction, it 
is plain that the intent of the testator was to confine his bounty to his wife 
and children if she should have any, to the exclusion of his brother and 
nieces. This was his primary intention; and it was only upon a state of 
circumstances which has not happened, that he meant to make any provision for 
the Plaintiffs. Every part of a will is to be considered in its construction, 
and no words ought to be rejected, if any meaning can be possibly put upon 
them. Every string should give its sound. (2 Burr., 770. 2 P. Wms., 282.) The 
child or children are to he raised and educated by his wife out of the income 
of the property left to her, as we'll as all the property be dies possessed 
of. The whole of his property must, therefore, have been retained for the 
purpose; which is inconsistent with the immediate bequest of any part of it to 
his nieces. The child marrying or arriving at age in his wife's lifetime, 
shall have an equal share of all his negroes, as well as all his other 
property, except the land left to his wife. This must signify a child's part 
of all his property, including that claimed by the complainants. But the third 
clause is strongly impressed with the intention, and is calculated to remove 
all doubt; for by that be gives to his child or children all that he had given 
to his wife, or all that she should inherit from his estate. Now he had given 
her part, and directed her to retain the whole for the purpose of raising his 
child; or to use his own expression, "all the property I die possessed of." 
The property he had given to her, and that which she should inherit from his 
estate, (by which inaccurate expression, he meant all the rest which was to be 
retained by her) he gives to his child upon her death. Desirous to make his 
meaning still plainer, he concludes this clause with the words "or for want of 
such heirs as hereafter mentioned."

These words run through and govern every succeeding clause in the will, by 
which the same property is disposed of; none of which were intended to be 
effectual in the event which has occurred, namely, the birth of a posthumous 
child. The opposite construction creates an unaccountable repugnance between 
different parts of the will, and tends to defeat the only child of the 
testator of a considerable proportion of his little all; which his father so 
anxiously endeavored to secure to him.

Cited: Williams v. McCombs, 38 N. C, 453; Capehart v. Burrus, 122 N. C, 127.


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