Craven County NcArchives Court.....Thomas Singleton, William Blackledge V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 10, 2009, 12:15 am

Source: Nc Reports
Written: 1819

William Blackledge, Executor of the Last Will of Benjamin Blackledge, Deceased 
v. Thomas Singleton et al

From Craven

November Term 1819

Difference between ancient and modern decisions, as to legacies void either by 
reason of the uncertainty of the legatee, or of the inability of the legatee 
to take. Both are founded upon the supposed intention of the testator but the 
ancient decisions say, the testator intended to pass only that which was left 
after taking out the legacies, and that the executor or next of kin take the 
lapsed legacies; and the modern say, that the testator intended his residuary 
legatees should take all that does not pass under the will, no matter from 
what cause there may be a residue. Neither of them, however, say that a 
legatee can take without, or contrary to an intent. Therefore,

Where a testator bequeathed to his nieces, "the residue of his property not 
disposed of except his negro woman Jenny," and in a codicil to his will, 
directed "that his negro woman Milly be left precisely as his negro woman 
Jenny was left in his will," and Milly had a child after the death of the 
testator, this child belongs to the next of kin and not to the residuary 
legatees. If an executor act with good faith in asking advice of the Court of 
Equity, the costs shall be paid out of the estate of the testator.

This was an application to the Court of Equity by the Complainant, for 
direction how to distribute a certain portion of the estate of his testator. 
The bill charged that the testator had bequeathed certain negro slaves to his 
wife, and to Benjamin Blackledge Hanks "one-third of his negroes not otherwise 
disposed of;" and to Richard B. Singleton and Thomas Singleton, "the remaining 
two-thirds of his negroes not otherwise disposed of, except his negro woman 
Jenny, left him by his father;" and to his nieces, Polly Blackledge, Ann B. 
Hatch, and Martha Singleton, "the residue of his property not disposed of, 
except the negro woman Jenny, as before excepted."

And in a subsequent clause of the will, he "recommended his negro woman Jenny, 
as excepted in a former clause, to the particular care of his brother William 
(the Complainant), and requested that he would not remove her from the 
plantation where she lived, unless by her consent, and in case she should, by 
old age or infirmities, need support, that it be drawn from the hire of 
certain negroes" which he directed to be hired out for a particular time.

In a codicil to the will, the testator directed "that his negro woman Milly be 
left with, and precisely as his negro woman Jenny was left in his will."

After the death of the testator, the negro woman Milly had a child named 
Squire, and the Complainant prayed the advice of the Court, to whom this child 
belonged, and how and in what manner he should dispose of him. He charged that 
Squire was claimed by Benjamin B. Hanks, Richard B. Singleton and Thomas 
Singleton, under the bequest to them "of the negroes of the testator not 
otherwise disposed of, except the negro woman Jenny;" and was also claimed by 
the nieces, Polly Blackledge, Anne B. Hatch and Martha Singleton, under the 
bequest "of all the residue of testator's property, not disposed of, except 
the negro woman Jenny." Complainant also charged that Squire was claimed by 
the next of kin generally, of the testator, as a residuum not disposed of by 
the will; and he submitted whether he himself was not entitled to Squire, as 
the increase of that which, by the will, was given to him. The case was sent 
to this Court.

Henderson, Judge: I think this short answer may be given to the claims of 
Benjamin Blackledge, Richard B. Singleton and Thomas Singleton, that Milly, 
the mother of Squire, being excepted from their bequests, they can have no 
claim to any of her issue born after the testator's death; and to the claim of 
William Blackledge, that the testator intended him no beneficiary interest in 
Milly; at most he is only a naked trustee. And as for his claim to Squire for 
the support of the two negro women, the testator has pointed out another fund 
for that purpose. The only contest is between the residuary legatees and the 
next of kin.

To ascertain in whom the right to Squire is, it is necessary to fix the 
condition of his mother. Partus seqiritur ventrum. William Blackledge's claim 
has already been disposed of: if he has any interest, it is as a mere trustee 
for the residuary legatees or the next of kin. In favor of the claim of the 
residuary legatees, it is said that they must take all, after satisfying the 
claims under the will, and that this claim extends to legacies lapsed by the 
death of the legatees before that of the testator. As to cases where a legacy 
is void by reason of the uncertainty of the legatee, or of the inability of 
the legatee to take, there is a difference between the ancient and modern 
decisions on some points; but it may be admitted that the modern are correct; 
for they are bottomed upon that universal principle in our law, that in the 
construction of wills, the intent is to be sought for, and, when not 
contradictory to law, is to be followed. The modern decisions say, that the 
testator intended his residuary legatees should take all that does not pass 
under his will, no matter from what cause there may be a residue: the ancient 
say that he only intended to pass what was left after taking out the legacies, 
and that the executors, or the next of kin, take the lapsed legacies: both 
making it a question of intention. But no case goes so far as to make a 
legatee take without, or contrary to an intent.

In this case, Milly is expressly excepted out of the residuary clause, and, of 
course, cannot pass under it. Milly, therefore, not being disposed of to any 
one by the will, but if to any one, to a naked trustee, Squire, her issue, 
belongs to the next of kin.

As we believe that the executor acted with good faith, in asking the advice of 
the Court, his costs must be paid out of the proceeds of the sale of Squire.


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