This bill was filed by the executor, stating the death of the husband of the testator's daughter, Mary E. Avent, and the refusal of the trustee to act, and asking the advice of the court as to the proper construction of the will in the following particulars, viz.: First, whether the sum of $500, directed to be reserved out of the said Mary E. Avent's share of the proceeds of the sale, was a legacy given to her absolutely, or was intended to be added to the share thereof of his widow and her children, or whether the testator had not died intestate thereof. Secondly, whether the said Mary E. Avent and her children had any other interest in the bequests to the trustee, Doggett, beyond support and maintenance during their lives and the life of the longest liver of them; and whether, if they had any interest beyond such support and maintenance, the said Mary E. Avent had the absolute interest, or she and her children were tenants in common, or whether she was tenant for life with the remainder to her children. One of the questions presented in this case is free from difficulty. It is clear that the sum of $500, in the testator's will, is *Page 238 mentioned by way of diminution of, or deduction from, the share of the residue bequeathed in trust for Mrs. Avent and her children, and, therefore, the balance or "surplus" to be divided between the testator's wife and her children is increased by that amount. (287) But the other question is by no means so easily answered.
Taking into consideration, however, the pointed declaration of the testator, that "of the part designed for his daughter" he desires that "no part or parcel be subject to the debts of her husband"; that the bequest thereof is made to a trustee; that the trusts are to be collected from intimations as to the object of his bounty in different parts of his will; that in the first part his daughter, Mary E. Avent, is solely named as that object, and, in the latter part, his said daughter and her children are all named as such objects, we are of opinion that the testator's purpose will be most effectually promoted by holding that the bequest was made in trust for his daughter, Mary, to her sole and exclusive use for life, and after her death, then in trust for her children. This interpretation, we think, is the more strongly called for because, if we construe the immediate beneficial bequest to be made to Mary E. Avent and her children, none of the children could take under it but those in being at the death of the testator. This, we are satisfied, could not have been his intention.
Under this construction it will be necessary to have a trustee appointed in the place of Mr. Doggett, who declines to act.
PER CURIAM. Decree accordingly.
Cited: Bridgers v. Wilkins, 56 N.C. 344.
Dist.: Gay v. Baker, 58 N.C. 346.