Lincoln County, NC - Abraham Scott v. William Moore & Others

ABRAHAM SCOTT v. WILLIAM MOORE AND OTHERS
(Winst. Eq., 98.)

1. The word "children" in the grant of a remainder, after the death of 
   A., to her children living at her death, embraces grandchildren, if 
   other parts of the conveyance show that it was the intention of the 
   grantor to provide for grandchildren.
2. An additional reason for this construction is furnished by the fact 
   of such a provision being made in a marriage settlement.

THIS was a cause removed from the Court of Equity of Gaston to this 
Court for trial.                               

In 1816 Mary J. Scott, a widow, living in Lincoln County, married John 
Moore of the State of Georgia. Before the marriage, and in 
contemplation of it, the parties, together with Logan Henderson, 
executed a deed of this tenor, viz.: "This indenture triparte, made 
this 29 July, 1816, between, etc., witnesseth: That whereas a marriage 
is intended shortly to be had between the said John Moore and Mary 
Scott, and upon the treaty of the said marriage it was agreed that 
previously to the marriage Mary Scott should assign and make over the 
following negroes, with their increase, which are the property of Mary 
Scott, to Logan Henderson, upon the trusts hereinafter expressed: Now, 
this indenture witnesseth, that in consideration of the intended 
marriage and in performance of that agreement, Mary Scott does hereby 
sell and assign to the said Logan Henderson the following negro slaves, 
to wit, Candis, etc., to hold them upon the trusts and for the 
interests herein expressed, to wit: that he will permit John Moore and 
Mary Scott to take into their actual possession the said negro slaves 
and possess and use them for their joint lives, and also for and during 
the life of the survivor of them; and upon the further trust, that 
immediately after the deaths of John Moore and Mary Scott, he will 
divide the said slaves and their increase fairly and equally, having 
regard to their value, among all the children of the said Mary Scott 
that may be then alive, share and share alike, as well those children 
that may be the issue of the intended marriage with the said John 
Moore; but if it should so happen that there be not any issue of the 
intended marriage then the whole of the said negro slaves and their 
increase to be divided between the present children of Mary Scott; and 
in case it should so happen that Mary Scott should survive John Moore, 
the trustee shall permit Mary Scott to dispose of one-half of the 
negroes and their increase; provided she dispose of them to and among 
her children that may then be alive, or among the children of such 
children as may then be alive, or that may be alive at the time she 
makes such disposition, or to any one of her children or grandchildren; 
and upon the further trust, in case Mary Scott should survive John 
Moore, and she should have no child nor grandchild, the negroes and 
their increase shall be subject to the deposition of Mary Scott by her 
last will or otherwise; and if she should die without making any 
disposition of them, the same shall descend to her heirs at law; and if 
John Moore should survive Mary Scott and at the time of his death, 
there should not be a child or grandchild of Mary Scott then living, 
the slaves and their increase shall descend to the right heirs of Mary 
Scott, according to the statute of distribution in the State of North 
Carolina."

Mrs. Moore, at the time of her marriage with Moore, had one child by 
her first marriage, the plaintiff. By her second marriage she had two 
children-Lee Moore and Elizabeth Moore-who survived their father, but 
died in the lifetime of their mother, leaving children (the defendants) 
who were alive at the time of her death. Mrs. Moore made no disposition 
of the property during her second widowhood.

The plaintiff claimed the whole of the property, he being the only 
child of his mother living at her death. The defendants contended that 
the word "children," in the direction to the trustee how to dispose of 
the property on the deaths of Moore and his wife, embraced 
grandchildren.

Henderson, the trustee, never possessed any part of the property, or 
exercised control over it, and removed from this State many years ago; 
and it was generally supposed that he died in the State of Tennessee 
but that fact had not been ascertained, and the parties had no 
information whether he died testate or intestate, if he were dead.

Besides special prayers for relief, according to the plaintiff's claim 
to the whole property, there was a general prayer for such relief as 
the plaintiff was entitled to under the marriage settlement, in the 
existing state of facts.

Winston, Sr., for plaintiff.
W. H. Bailey for defendants.

(Supreme Court) MANLY, J. The object of the bill is to get a 
construction of the marriage settlement between John Moore and Mary 
Scott entered into shortly before their intermarriage. 

The deed provides that, "after the death of both, the slaves therein 
conveyed shall be equally divided between all the children of the said 
Mary Scott that may be then alive, share and share alike, as well 
former children as those born of the intended marriage." It seems the 
event upon which this disposition is made of the slaves has happened. 
Both are dead, without making effectual disposition of any of the 
property, and it remains to be divided according to the deed.

Mary Scott, who was a widow at the time of her intermarriage with 
Moore, had one child, who survives her, and is the present plaintiff. 
She had two children by her second marriage, Elizabeth and Lee Moore, 
both of whom died before her, leaving children. The family of Fites, 
mentioned as defendants, are the children of Elizabeth, and William and
Maria Moore are the children of Lee.

In this condition of the family the question is, whether Abraham Scott, 
the surviving child, takes the whole, or whether the grandchildren, the 
children respectively of Elizabeth and Lee, take parts.

A consideration of the whole deed satisfies us that the grandchildren 
may, according to the manifest intent, come under the designation of 
children, and take shares. One provision of the deed is, in case the 
intended wife shall survive, she shall have, with regard to a portion 
of the negroes, a power to dispose of the same to and among her 
children and grandchildren, at will. Another provision is, in case the 
wife survives and dies without leaving child or grandchild, any 
disposition which she shall make of the property by will shall be good.

In this last provision there is a necessary implication that if she 
had, in that contingency, left a grandchild, it would take according to 
their understanding of the deed. Both show that grandchildren, as well 
as children, were in the minds of the parties, and regarded as proper 
objects to be provided for.

Another consideration may be added, arising out of the particular kind 
of deed before us. One of the principal objects of a marriage 
settlement (it seems to be so of this) is to provide for offspring, all 
of whom must be equally the objects of bounty, as none can have 
forfeited it or placed himself in a situation to dispense with it. 
There is the greater reason, therefore, for construing this class of 
deeds, in case of ambiguity, in such way as to accomplish equal justice 
amongst offspring and satisfy natural affections.                                                        

The Court is of opinion that the grandchildren are embraced within the 
provision of the deed for children who shall survive; but as they come 
in upon the principle of representation, they must come in as classes, 
and take only the shares to which their parents would have been 
entitled had they survived.

Let a decree be drawn declaring these rights, and appointing 
commissioners to make division accordingly. 

The costs must be paid by plaintiff from the estate.

Dist.: Carson v. Carson, 62 N. C., 59; Powell v. Morisey, 98 N. C., 
430.

NOTE—When it appears from other parts of a will that the testator 
understood the distinction between "children" and issue more remote, 
grandchildren and great-grandchildren cannot be included in a division 
directed to be made among children. Boylan v. Boylan, 61 N. C., 160.

Additional information: Original case #8872

Children of Elizabeth A. & Henry C. Fite
Henry C.     full age
Abram S.     minor
John M.        "
Robert E.      "
Frances C.     "

Source: NC Reports, Vol. 60, June Term 1863-December Term 1864

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