We are deeply impressed with the conviction that if the testator could now be asked, "Was it your intention, in addition to the four negroes which you gave to Mrs. Gillis, and the four others which you gave to her children, also to give her three small negroes by your will," the answer would be, "That was not my intention; for my object was to make all my children equal."
If, by the application of the principles of law which have been adopted for the purpose of giving effect to the intention of testators, there should be a failure to give effect to the intention in this particular instance, the reply is, it must be ascribed, not to any defect in the principles of law, but to the unaccountable neglect of the testator.
Assume, as insisted upon on the part of the defendants, that the will was written and signed in 1842, the day of its date. If it was the intention of the testator, by his deed of gift in 1845 of four negroes to the children of Mrs. Gillis, to satisfy the legacy to her of "three small negroes," it was neglect, on his part, not to have that act set out in the deed. Again, if such was his intention, he was guilty of the most unaccountable neglect in 1847, when the paper was in his presence, formally attested by two witnesses, for the purpose of giving it legal effect, in not then revoking the legacy of "three small negroes" to his daughter, on the ground that he had made her equal to her brothers by the gift to her children.
Law is made for the vigilant and not for the negligent, is a maxim which may be applied as well to those who are giving (271) away property, as to those who are seeking to acquire it. In our case, it was the neglect of the testator not to give evidence of his *Page 212 intention, and there is no ground on which it can be presumed. The gift, which is insisted upon as a satisfaction of the legacy, was not of three small negroes, but of four negroes, one of whom was a grown woman, and the gift was not to the daughter, but to her children, and if parol evidence were competent to show the intention, there is no evidence that at any time the testator declared that the intention was to satisfy the legacy by this gift. In Howze v. Mallett, 57 N.C. 194, the testator required the legatee to admit, expressly, in writing, that the money was received in satisfaction of the legacy.
The conclusion that the legacy was not adeemed by the gift, is irresistible on principles well settled — putting the case on the supposition that the paper was signed by the testator in 1842 (as to which there is no proof). On the supposition that the paper was not signed until after the gift, there is no ground on which to base an argument in support of an ademption. So, taking it either way, the defendants have failed to establish the allegation that the legacy is satisfied.
There must be a decree that the plaintiffs are entitled to the value of the three small negroes, to be fixed two years after the death of the testator, with interest from that date; as to which, there will be a reference.
PER CURIAM. Decree accordingly.
Cited: Chambers v. Kerns, post, 282; Millsaps v. McLean, 60 N.C. 82;Leathers v. Gray, 101 N.C. 166.
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