Mecklenburg County NcArchives Court.....Andrew Dunn, John Gibbons & Wife 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 February 5, 2009, 5:59 pm

Source: Nc Reports
Written: 1819

John Gibbons and Wife et al v. Andrew Dunn et al

From Mecklenburg

November Term 1819

Testator bequeaths a slave named Nell "to his wife during her natural life or 
widowhood," and in a subsequent clause of his will, he says, "I desire that 
the negro woman Nell shall become the property of my daughters, A. and B. at 
their mother's death, or at the time that my son Thomas arrives to sixteen 
years of age. If the widowhood of my wife should terminate before her natural 
life, Nell shall remain in this place for the support, of my children."

The daughters are not entitled to Nell, until both events happen, to-wit, the 
death of the widow, and the arrival of Thomas to the age of sixteen; and the 
Court will construe the word or conjunctively, to effectuate the testator's 
intention.

The question in this case arose out of the will of Thomas Dunn, deceased. In 
the first clause of his will, he, bequeathed "a negro woman named Nell and her 
child Esther, to his wife, during her natural life or widowhood;" and in a 
subsequent clause, he bequeathed as follows; "I desire that the negro woman 
Nell before mentioned, shall become the property of Jane Gibbons and Betsy 
Spratt, at their mother's (the testator's wife's) death, or at the time that 
my son Thomas arrives to sixteen years of age; and her increase, if any, 
before that time, to be equally divided among the rest of my children. And be 
it understood that it is my will, that if the widowhood of my wife should 
terminate before her natural life, the above named negro Nell shall remain in 
this place for the support of my children who may live here." 

The son Thomas having arrived at the age of sixteen years, Jane Gibbons and 
Betsy Spratt, with their husbands, claimed Nell and her children born after 
Thomas' arrival to the age of sixteen years; and filed a petition against the 
executors of the testator, praying that they might be decreed to deliver the 
negroes to them. The executors filed their answer, and therein insisted that 
the true intent and meaning of the testator, as to the negro woman Nell, was, 
that she should not go over to the petitioners until both of the events named 
in the will, to-wit, the death of the widow and arrival of Thomas to the age 
of sixteen years, should happen; and that the widow was still alive. The Court 
was of this opinion, and dismissed the petition. The petitioners appealed to 
this Court.

Hall, Judge: In the first clause of the will, relative to the negro Nell, the 
testator gives her to Mary his widow, during her widowhood or natural life; in 
the next clause wherein he speaks of her, he does not say expressly, how long 
she shall remain where he lived, but no doubt he meant until Thomas should 
attain the age of sixteen years. If, however, the mother's widowhood had not 
expired when Thomas arrived to the age of 16 years, she stood in as much need 
of Nell's services for support as before. In such event, the testator made no 
provision for the support of his children out of her services, because he no 
doubt expected that the mother, who was to have a maintenance out of the 
produce of the plantation where he lived, and the children would live 
together. It seems to me, that considering the first clause where the negro 
Nell is given to the widow during her natural life or widowhood, with the 
latter clause, the true construction is, that she should belong to the widow 
during her life or widowhood, but that after her death, or after the 
termination of her widowhood, provided his son Thomas should have attained the 
age of sixteen years, she should become the property of his daughters, Jane 
Gibbons and Betsy Spratt. The petition must be dismissed with costs.

Taylor, Chief Justice: From a consideration of all the parts of this will, it 
appears satisfactorily to my mind, that the testator did not intend that Nell 
should become the property of his married daughters, until after the happening 
of two events, to-wit, tho death of his wife, and the arrival of his son 
Thomas to the age of sixteen years. His wife was to be supported out of the 
plantation, as long as she lived or remained a widow, and Nell was to assist, 
in procuring that support. If his wife married again, Nell was still to 
continue on the plantation, to work for the children who should live there; 
and this would be necessary, at least until Thomas arrived at sixteen, when 
the testator calculated he might he better able to take care of himself. He 
could not intend that his wife, remaining single, should be deprived of such 
assistance as Nell might afford her, as soon as Thomas reached sixteen; nor 
that Thomas and the others living on the plantation should lose the services 
of Nell in the event of the death of their mother before that period. She 
might have died immediately after the death of the testator, when Thomas was 
of very tender years. The different parts of the will are to be reconciled, 
and the manifest intent of the testator effectuated, and by reading the 
word "or" conjunctively, as if "and" had been written which it is allowable to 
do, according to the cases collected in 2 New Rep., 38. 

I am of opinion the petition should be dismissed.

Henderson, Judge, concurred. Cited: S. c. 18 N. C. 448.


File at: http://files.usgwarchives.net/nc/mecklenburg/court/andrewdu855wl.txt

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

File size: 5.9 Kb