Robert Harris died in 1847, leaving him surviving his children, William Harris and Robert Harris, and Sarah Gillis, and grandchildren, Robert L., William H., Ann, and Sarah Harris, who were the children of his son Lawson Harris (who died before his father) and Sarah Harris, his widow, who died a short time after her husband and upon whose estate William Philpot took out letters of administration. The bill is filed by William and Robert Harris, the executors, against the administrator of Sarah Harris, Sarah Gillis and her husband, and the children of Lawson, praying that a construction may be put upon the will of Robert Harris to enable the plaintiff to make (325) distribution. *Page 228
The will is as follows:
"In the name of God, amen: I, Robert Harris, Sr., of Person County, State of North Carolina, being of sound and perfect mind and memory (blessed be God), do this 10 May, 1842, make and publish this my last will and testament in manner following: that is to say, after all my just debts are paid:
"Item 1. I give and bequeath unto my son William Harris one horse, bridle, and saddle; one cow and calf; one bed and furniture, 273 1/2 acres of land whereon he now lives; six negroes, by name, Linda, Stephen, Frank, Henry, Dice, and Ann, unto him and his heirs forever; which he has already received.
"Item 2. I give and bequeath unto my son Lawson Harris one horse, bridle, and saddle; one cow and calf; one bed and furniture; 300 acres of land, joining the land of Allen Yancey, William Harris, and others; which he has already received, and expended the value to his own use.
"Item 3. I give and bequeath unto my daughter Sarah Gillis one feather bed and furniture; one mare, bridle, and saddle; four negroes, by name, Dice, Jinny, Peggy, and Jacob, to her and her heirs forever; which she has already received.
"Item 4. I give and bequeath unto my son Robert Harris one horse, bridle, and saddle; one bed and furniture; seven negroes, by name, Oxford, Sarah, Gaston, Green, Lethe, Tinc, and Elijah, to him and his heirs forever; which he has already received.
"Item 5. I leave to my beloved wife, Sarah Harris, the tract of land whereon I now live, during her life as my widow; also as many of my negro men and women as she chooses, out of the number I leave; two choice horses; four cows and calves; all my stock of hogs; fifteen (326) choice sheep; all the stock of geese; all the household and kitchen furniture, or as much as she cares to keep; one yoke of steers and cart; the rest of my black people to be divided after William Harris receive one, the value of Tinc, which my son Robert Harris has over the number of his brother William; also it is my desire for my son William to have $53 to make his tract of land equal of value with the tract I gave my son Lawson; also it is my desire that my daughter Sarah Gillis have three small negroes more, which will make her number seven, equal with her brothers' number.
"I give and bequeath unto the heirs of my son Lawson Harris, deceased, two negroes, Milly and Jeff, to them and their heirs forever.
"Item. I give and bequeath unto my son Robert Harris the tract of land whereon I now live, containing 600 acres, after the death or marriage of my wife, to him and his heirs forever. Also the negroes which I leave her to return to my estate at her death or marriage. *Page 229
"I give and bequeath unto my daughter Sarah Gillis the tract of land whereon my brother Overton Harris lived at his death, containing 150 acres, to her and her heirs forever.
"My other two tracts of land not mentioned, including the mill tract above, containing 640 acres, and all my negroes, not mentioned, to be equally divided between my two sons William Harris and my son Robert Harris, and my daughter Sarah Gillis, and the heirs of my son Lawson, deceased, and the rest of my property, wagon, still, etc. It is my desire that my son William shall have 30 acres of land surveyed off from the tract on which I now reside, adjoining the tract which I have given him, and then the balance of the tract to my son Robert, as before recited.
"I nominate and appoint my son William Harris and my son Robert Harris executors to this my last will and testament. In (327) witness whereof, I have hereunto set my hand and affixed my seal, this 1 June, 1842. ROBERT HARRIS. [SEAL]
"In presence of JOHN HUMPHRIES, AMBROSE GRISHAM."
The bill alleges that Mrs. Harris died a few days after the testator, before she had received the horses, sheep, etc., bequeathed to her, and that her administrator insists upon having his choice of the horses, etc.; that the testator, after the will was made, gave Mrs. Gillis three negroes, and that she and her husband insist upon having three more, before the general division is made; that the testator, before the will was made, had given to his son Lawson five negroes, of which no mention is made in the will, and that the children of Lawson insist that in the general division they will each be entitled to one full share, making four-sevenths.
The answers submit these questions to the decision of the Court. Upon the first question, it is clear that the (328) administrator of Mrs. Harris is entitled to the horses, sheep, etc. It is the duty of the executors to make the selection. A confidence is reposed in them that they will select good articles of the several descriptions of chattels. The administrator is entitled to "twochoice horses," by which is meant two of the best horses, and to fifteen of the best sheep.
Upon the second question, assuming, as we must do, that the three negroes were given to Mrs. Gillis by a valid deed of gift, we think these *Page 230 three negroes are a satisfaction of the legacy of the three small negroes. If no other words had been added, this would have been the conclusion; for gifts and bequests to children are considered as portions or provisions made for them, and the law will not allow of a double portion to one child unless there be a clear intent to give it; but in this will the matter is put beyond all question by the words, "three small negroes more, which will make her number seven, equal with her brothers' number" — the will having mentioned before that she had already received four. Here the reason for giving the three small negroes is expressly stated. That reason ceased by the gift of the three negroes made afterwards, and, as the reason ceased, the gift was satisfied, upon the same good sense with the maxim,"Cessanti ratione cessat lex."
Upon the third question, without putting any stress on the fact that Lawson is spoken of in the will as being alive, which we presume is to be attributed to the fact that the will has two dates, being date 1 at the commencement, 10 May, 1842, and at the end, 1 June, 1842, we are forced to the conclusion by the cases decided in this State and in England, and in our sister States, that the word "heirs," as used in this will, means the children of Lawson Harris, and that the division must be per capita, in which each of the children of Lawson will (329) take one full share. This is fully settled by Ward v. Stowe, 17 N.C. 509, when it was last before this Court, and when all the cases were fully examined and discussed. The history of that case shows the importance of abiding by the rule, stare decisis, and as it was so solemnly decided, we should follow it, even if disposed to question its correctness; in which, however, we entirely concur. To take this case out of the general rule, our attention was called by the counsel for the plaintiff to the fact that in another clause two negroes are given to the "heirs" of Lawson, where it is insisted the children take as a class. This suggestion does not aid the plaintiff. It is certain that in that clause the word "heirs" does mean children, and the division between them will be per capita.
The main reliance, however, was put upon Spivey v. Spivey, 37 N.C. 100, and Martin v. Gould, 17 N.C. 305. We have examined these cases attentively. They do not enable us to say that this case is an exception to the general rule. In the case of Spivey v. Spivey the words, "those who have received a part of my estate will account to the balance of my children for what they have received," were held sufficient to make that case an exception; for, although the word "heirs" was held to mean children, yet as they were expressly required to account for advancements made to their mother, as a class, it was held that they should also receive as a class. There are no words of the kind in the case under consideration. *Page 231
In Martin v. Gould the provision which gave out of the fund, before the division, the average, price of 100 acres to Daniel, the son, "in order to make him compensation for 100 acres which I gave to my son Malichi," was held to make that case an exception; for it showed that the testator meant to deal equally between his two sons.
In this case it does not appear from the will that the testator meant to deal equally between all of his children, but to make such a disposition of his property as he though right, without (330) reference to a precise equality.
William and Lawson are made equal in land by adding $53. Robert has no land until the death of his mother, when he is to get the "home place," 600 acres. No reference is made to equality in land with William and Lawson — no average price is to be fixed on.
Sarah Gillis is given a tract of 150 acres of land. No reference to value, so as to show that equality is intended.
William and Robert Harris and Sarah Gillis each receive seven negroes. The number is equal; nothing is said about value.
And the children of Lawson receive two negroes. No mention is made of any negroes having been given to Lawson. Nor is it said that the two negroes are to make the share of Lawson equal. So it would not appear that equality was intended, even if we could go out of the will to take notice of the fact that five negroes had been given to Lawson, which could not be done without violating the rules of evidence, that written instruments are not to be added to, varied, or explained by parol testimony.
We, therefore, can see nothing to take this case out of the general rule, and we do not feel at liberty to depart from a series of cases "to be traced back for more than a century," for the purpose of speculating upon what might have been the intention of the testator.
PER CURIAM. Declared accordingly.
Cited: Bivens v. Phifer, 47 N.C. 438; Cheeves v. Bell, 54 N.C. 237;Burgin v. Patton, 58 N.C. 427; Lane v. Lane, 60 N.C. 631; Grandy v.Sawyer, 62 N.C. 10; Culp v. Lee, 109 N.C. 677.
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