Bladen County NcArchives Court.....William Hendon, Archibald M'Kay V. 1819
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 21, 2009, 9:25 pm

Source: Nc Reports
Written: 1819

Archibald M'Kay, Guardian, &c., v. William Hendon

From Bladen

May Term 1819

A. by his will, directed certain negro slaves to be divided between his three 
children, William, Mary and Sarah, when either of them should come of age, or 
sooner, if the executors found it necessary; and then declared, "that if 
either of the said children should die under age, without heirs, then that 
share should be divided between the other two children." Mary died under age 
and without issue. William then died, leaving Sarah of the whole blood, and 
two brothers and a sister of the half blood, of the maternal side. The part of 
Mary's share which accrued to William upon her death, does not survive to 
Sarah, but goes to her and to the brothers and sisters of the half blood.

The rule is, that where legacies are given to three or more persons as tenants 
in common, with a bequest to the survivors upon the death of any of them 
within a given period, the original legacies only, and not the shares which 
accrued by survivorship, will survive.

The only exception to the rule is, where the fund is left as an aggregate one, 
and made divisible among many persons as legatees, with benefit of 
survivorship among them.

The question upon this case arose upon the following clause in the will of 
Richard Salter. "I give my other negroes, young Cato, Peter, Dinah, Mary, 
Anne, and Diana, to be divided between my three children, William, Mary and 
Sarah, to them, their heirs and assigns forever, to be divided when either of 
them comes of age, or sooner if my executors should find it necessary: and my 
will is, that if either of my said children should die under age, without 
heirs, then that share to be divided between the other two children." The 
testator left his wife Nancy and three children, William, Mary and Sarah, him 
surviving. Nancy, the widow, intermarried with Archibald McKay, by whom she 
had issue, Alexander, John and Eliza. Mary, one of the children of Richard 
Salter, then died, a minor and without issue. Afterwards, William, another 
child of the said Richard Salter, died, a minor and without issue. The 
petitioners, Alexander, John and Eliza McKay, children of Nancy by her second 
husband, Archibald M'Kay, filed this petition by their father, who had been 
appointed their guardian, against the representative of Richard Salter, for an 
account and distribution of the legacies given to Mary and William Salter; 
either under the will of his father, or by the death of his sister Mary? And 
if so, to what part? And the case having been sent to this Court for the 
opinion of the Judge.

Taylor, Chief-Justice: The brothers and sisters of the half blood of the 
maternal side to William Salter, who died intestate, have filed this petition 
by the guardian, to obtain an amount and distribution of the part of the 
intestate's personal estate, which he acquired under the will of his father, 
Richard Salter. The three children of the testator survived him, and 
afterwards, Mary died under age and without issue, leaving of the whole blood, 
her brother William and her sister Sarah; and of the half blood, Alexander and 
John, her brothers, and Eliza, her sister, surviving: Then William died under 
age, and without issue, leaving the preceding brothers and sisters surviving.

It may be conjectured, that the testator meant to confine his bounty to his 
three children and their descendants, if they should have any: And that upon 
the death of two under age and without children, the whole of the negroes 
should belong to the surviving brother and sister: That while any one of his 
children was alive, no other collateral relation of those who were dead should 
share with the survivor; and least of all, could the testator contemplate that 
the children of his widow by a future husband should be entitled to share with 
the surviving child. If a Court were at liberty to judge of the testator's 
intention, deduced from circumstances out of the will; and by giving to words 
in the will a construction in opposition to that which has been affixed to 
them by a series of decided cases, the considerations which have been 
mentioned, might probably in this, as well as in other instances, meet the 
justice of the case: but then it would put an end to the certainly of the law 
and the security of property. For while Judges may find out by industry the 
rules of interpretation established by law, their speculation, as to the 
intent of the testator, may differ; no legal opinion could be given on a will, 
by which so much litigation is now prevented; and it would be impossible to 
pronounce who was the owner of property claimed under a will, until the 
decision of this Court could be had on the question. A state of things so 
pregnant with mischief ought to be carefully avoided by a Court established 
for the purpose of testing by legal principles the adjudications of other 
tribunals: Yet it would be difficult to state a case in which a decision for 
one party would be in resistance to a stronger current of authorities than 
would be a decision for the defendant in this ease.

The rule is, that where legacies are given to three or more persons as tenants 
in common, with a bequest to the survivors upon the death of any of them 
within a given period, the original legacies only, and not those shares which 
accrued by survivorship, will survive, because such accrued shares, vesting in 
the surviving legatees in distinct proportions, proper words are necessary to 
make these shares survive with the others. This had been decided in relation 
to real property in Woodward v. Glascock, 2 Vera., 388, and in chattels, in 
Rutge v. Bunker, (Forrester 124), and Perkins v. Mickletwaite, (1 P. Wms., 
274). The reason of these determinations is, that the share accruing by 
survivorship vests in the surviving children by distinct shares, and not in 
them as joint tenants. In the case before us, the surviving share is directed 
to be divided between the other two children; and in Rutge v. Bunker, the 
Master of the Rolls says, "share and share alike" are equivalent to the 
words "equally to be divided." In the case ex parte West, (1 Bro. C. C. 575), 
before Lord Thurlow, the words of the will were "I leave to A. B. C. sons of 
Arthur Scaife 1000£ each, the interest to be added to the principal yearly, 
until they shall respectively attain the age of twenty-one years: and in case 
any of them shall die before that age, then to the survivors." A. died, and 
then B. both under the age of twenty-one. The question was, whether that, part 
of the share of A. which survived to B. upon the death of A. survived 
afterwards to C. upon the death of B? Or whether B's original share only 
survived? The Judge thought it a natural construction, that the word "share" 
in the case cited, Rutge v. Bunker, would take in the survival part as well as 
the original share; and consequently, the whole ought to survive: but he could 
not so decide without contradicting cases expressly in point; and, not being 
able to distinguish the case before him, he decreed that the survived part did 
not survive: expressing, at the same time a wish to reconsider his opinion. In 
consequence of what fell from him, the same case was afterwards brought on 
before the Master of the Rolls, Lord Kenyon, whose decree corresponded with 
the former ones. From a belief that an adherence to the rule generally 
disappointed the intention of testators, one case which, at first view, would 
seem to come within it, has been excepted from it, by reason of the peculiar 
penning of the will: but Lord Hardwicke, who made the decision, recognized the 
rule itself in the fullest manner — The material words of the will were, "I 
give the residue of my personal estate to my brother and sisters, Charles, 
Mary and Elizabeth, and the sisters of my late wife, Martha and Rebecca Paine, 
to be equally divided among them, share and share alike; and in case of the 
death of my brother or any of my sisters, or wife's sisters, before me, or the 
survivor of my father and mother, T do appoint his, her or their shares to be 
divided among the survivors of them." Charles died in the testator's lifetime, 
but after the making of the will: Mary and Elizabeth, the testator's sisters, 
died in the lifetime of the testator's mother, who survived her husband, but 
was then dead - The bill was brought by Martha and Rebecca Paine for the 
residue of the estate — It was decided that the accumulated shares of the 
persons who were dead, survived as well as the original ones: and the course 
of reasoning employed was, that there was an express direction that if any 
should die before the testator, his or her share should survive to the others: 
and the share of the one dying before the testator, would not have survived at 
all, but for this clause; it would have been an undisposed part of the 
testator's estate — Then if another had died in the testator's lifetime, the 
original fifth of him who died second, as well as the share which survived to 
him on the death of the first, would have gone over likewise — Therefore the 
testator meant that the accumulated as well as the original share should 
survive, and a different construction cannot be put on the word share in one 
case than in the other (Paine v. Benson, 3 Atk., 78). It must be acknowledged 
that the reasoning in Payne v. Benson went very close to the wind to steer 
clear of a rule that was though to militate against the testators intention; 
but admitting the case to be well decided, (which was subsequently doubted by 
Lord Thurlow in the ease of West, ex parte) yet it is not an authority for the 
Defendant in the case before us, in which the foundation is wanting on which 
the Chancellor built the whole of his reasoning. For if either of the children 
had died before, the testator, the share given to him or her would have 
lapsed; and the case cited turned upon the necessity of giving to the 
word "share," the same meaning when applied to the accumulated share, which it 
had when applied to the original one.

The only distinct exception to the rule is, where the fund is left as an 
aggregate one, and made divisible among many persons as legatees, with benefit 
of survivorship among them. (Worlidge v. Churchill, 3 Bro. C. C. 465.) The 
Judge, in giving his opinion, relies upon Rutge v. Bunker to shew that the 
rule was not thought to apply to an aggregate fund; and deduces from the will 
proofs from particular expressions, that the testator meant to keep it as an 
aggregate fund. Having examined all the cases relative to this question, with 
attention, we are bound to decide that the petitioners are entitled to divide 
with defendants that share which William acquired by the death of Mary.

Cited: Spruill v. Moore, 40 N. C, 288; Owen v. Owen, 45 N. C., 125.


File at: http://files.usgwarchives.net/nc/bladen/court/williamh777wl.txt

This file has been created by a form at http://www.poppet.org/ncfiles/

File size: 11.4 Kb