To this bill, the executor, Jehu Nichols, put in his answer, and therein admitted the several allegations of the bill; but alleged that he was advised Complainants were not entitled to the watch and negro slaves; for that the testator left his wife ensient with child, which was born a few months after his death, and was still alive; that the testator had made his will with reference to such an event; and that, upon the construction of the whole will, he was advised Complainants were not entitled, except in the event that the testator's wife had not been ensient with child at the time of his death: and he prayed the advice of the Court.
The several clauses of the will referred to by Defendant, in his answer, are in the following words:
"I lend unto my dear and loving wife, Susannah Williams, my plantation, and buildings thereunto belonging whereon I now live, during her natural life; also lend her, my said wife, all my household and kitchen furniture, except two beds and bedsteads, to be sold by my executors; also one negro man named Jack, one boy named Daniel, and one negro woman named Jenny, and one sorrel mare named Lucilda, and (29) all my stock of cattle and hogs, during her natural life, subject only to the provisions hereafter mentioned.
"Item — Provided my said wife Susannah Williams should be now pregnant of one or more children, it is my will and desire such child or children shall be raised and educated by my said wife out of the income of the property left to her, as well as all the property I die possessed of: but if such child or children should marry, or arrive to the age of maturity, in my said *Page 28 wife's lifetime, the one so marrying shall have an equal share of all my negroes and increase, as well as all my other property, except the lands and buildings left to my said wife. But, in case the child or children my wife is suggested to be pregnant with should die before marrying or arriving to the age of maturity, my wife Susannah Williams shall have the property in manner as above left to her during her natural life.
"Item — It is my will and desire that all my property left to my wife, or all she shall inherit from my estate, after her death shall be inherited by my child or children, or for want of such heirs, as hereafter mentioned.
"Item — I give and bequeath to my niece Sarah Williams, my land and improvements thereon, after my wife's death. I also give all the residue of my estate left to my wife her lifetime, to be equally divided between my brother's two daughters, Sarah and Eliza Williams, to them, their heirs and assigns forever.
"Item — I give and bequeath unto my brother's two daughter's, Sarah and Eliza Williams, one negro woman, named Esther, and her child Harry, to be in the care and under the direction of my brother William Williams, until either of them marrieth; at which time it is my will and desire that the said Esther and Harry, and the increase of Esther (if any) to be equally divided between them.
"Item — I lend unto my brother William Williams (30) my silver watch during his life, and after his death I give the said watch to his daughter, Sarah Williams, to her, and her heirs and assigns forever.
"It is likewise my desire, should I not leave money sufficient to discharge all my debts, in that case my executors should sell as much of my moveable estate, which my wife can best spare, as will make up the residue." Some aid in discovering the intention of the testator may be derived from a consideration of the state of his family, and the kind and extent of the property he owned at the time of making his will. (1 P. Wms., 286. — 4 Bro., 441.) His family consisted of his wife only; and it cannot be presumed that he had any other property than that specified in his will, which consisted only of his plantation, household furniture, stock and wearing apparel, together with five slaves. Indeed it is almost certain that this constituted the whole of his estate; because he directs that in the event of his not leaving money enough to pay his debts, such part of his personal estate should be sold for that purpose as his wife could best spare.
A man so situate would naturally desire to make a competent *Page 29 provision for his wife during her life, and to bestow some present token of his regard upon those who were nearest to him in blood, with the prospect of an accession to it upon the death of his wife. But if he thought it probable that his wife was then ensient, the natural affection of a parent would prompt him to make a provision for his future offspring; and, from a fortune so small, would as naturally restrain him from making a deduction in favor of his collateral kindred. If this intention can be fairly collected from the will, it is our duty to give effect to it, though it may not be expressed in legal and technical words.
In the first clause of his will, the testator lends to his wife during her life, his plantation, furniture, stock, (31) and three out of five of his slaves; and the second clause provides, that if she should then be pregnant with one or more children, such child or children shall be raised and educated by his wife, out of the income of the property left to her, as well as all other property he diespossessed of: if the child or children should marry or arrive at age in his wife's life-time, the one so marrying shall have an equal share of all his negroes and their increase, as well as all his other property, except the land left to his wife. In the event of the child or children dying before marriage or arrival at age, then the property devolves upon the wife as directed in the first clause. The third clause directs that all the property left to his wife, as well as all she should inherit from his estate, after her death shall be inherited by his child or children, or for want of such heirs, as hereafter mentioned. By the fourth clause, he gives the land left to his wife, to his niece, Sarah Williams, after the death of his wife: And the residue of what he had given to his wife, he directs to be equally divided between his brothers two daughters. Then follow the fifth and sixth clauses under which the complainants claim the slaves, Esther and Harry, and the silver watch. If we apply to the will the ordinary rules of construction, it is plain that the intent of the testator was to confine his bounty to his wife and children if she should have any, to the exclusion of his brother and nieces. This was his primary intention; and it was only upon a state of circumstances which has not happened, that he meant to make any provision for the Plaintiffs. Every part of a will is to be considered in its construction, and no words ought to be rejected, if any meaning can be possibly put upon them. Every string should give its sound. (2 Burr., 770. 2 P. Wms., 282.) The child or children are to be raised and educated by his wife out of the income of the property left to her, as well as all the property *Page 30 he dies possessed of. The whole of his property (32) must, therefore, have been retained for the purpose; which is inconsistent with the immediate bequest of any part of it to his nieces. The child marrying or arriving at age in his wife's lifetime, shall have an equal share of all his negroes, as well as all his other property, except the land left to his wife. This must signify a child's part of all his property, including that claimed by the complainants. But the third clause is strongly impressed with the intention, and is calculated to remove all doubt; for by that he gives to his child or children all that he had given to his wife, or all that she should inherit from his estate. Now he had given her part, and directed her to retain the whole for the purpose of raising his child; or to use his own expression, "all the property I die possessed of." The property he had given to her, and that which she should inherit from his estate, (by which inaccurate expression, he meant all the rest which was to be retained by her) he gives to his child upon her death. Desirous to make his meaning still plainer, he concludes this clause with the words "or for want of suchheirs as hereafter mentioned."
These words run through and govern every succeeding clause in the will, by which the same property is disposed of; none of which were intended to be effectual in the event which has occurred, namely, the birth of a posthumous child. The opposite construction creates an unaccountable repugnance between different parts of the will, and tends to defeat the only child of the testator of a considerable proportion of his little all; which his father so anxiously endeavored to secure to him.
Cited: Williams v. McCombs, 38 N.C. 453; Capehart v. Burrus,122 N.C. 127.
(33)