{
  "id": 11274089,
  "name": "JAMES ELLER et al., Ex't'rs, v. J. W. LILLARD et al.",
  "name_abbreviation": "Eller v. Lillard",
  "decision_date": "1890-09",
  "docket_number": "",
  "first_page": "486",
  "last_page": "491",
  "citations": [
    {
      "type": "official",
      "cite": "107 N.C. 486"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "93 N. C., 183",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11272990
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/93/0183-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:90a605542445eb51",
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  "last_updated": "2023-07-14T15:31:37.064200+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JAMES ELLER et al., Ex\u2019t\u2019rs, v. J. W. LILLARD et al."
    ],
    "opinions": [
      {
        "text": "MekeimoN, C. J.\nafter stating the facts: We are not called upon, nor would it be proper, to interpret the will before us, or particular clauses of it, further than may be necessary in reviewing the judgment of the Court below in the respects embraced by the assignments of error. Our province is simply to correct errors of the Court below \u2014 not to go beyond that and interpret the whole'will, or determine the rights of devisees or legatees otherwise than as these may be involved in the assignments of error.\nThe clear purpose of the testator was, first, to provide for his wife. Iiis further purpose, to have his wife and children share equally in his property, except as to specific devises and bequests, is very apparent. And, with this view, he intended that his grandchildren of his deceased children should respectively represent their deceased parent and take the part the parent would take if living. Indeed, in his will, just after the naming of his deceased children, and after each, her or his children, he expressly declares, \u201cI mean the above-named heirs\u201d (the heirs \u2014 the children \u2014 of his deceased children mentioned) \u201c'are to have an equal share of my estate with the balance of my children \u2014 the share that the mother or father, if living, would be entitled to, viz., E. C. Lillard, A. L. Lide and A. E. Penn,\u201d who were his surviving daughters and only surviving children, mentioned awkwardly in this connection. And, to make such equality as to his surviving children and the children of his deceased children,, he intended that the surviving children and his grandchildren representing respective!}' their deceased parents, should account to and with each other for certain advancements which he specified in his will, so far as the same had been made at the time he executed it.\nSuch equality in sharing the property of the testator by his children and grandchildren is confined to the general residue of his estate \u2014 it does not, in the absence of direction to the contrary, extend to and embrace specific legacies. A specific legacy implies that the particular thing \u2014 property-bequeathed shall go to the legatee just as given, including the amount or measure thereof. Starbuck v. Starbuck, 93 N. C., 183. Hence, as to the special legacies, the testator did not intend that the co-legatees should account to and with each other for advancements \u2014 he intended that these legatees should take the property so bequeathed just as he gave it \u2014 the law so implies in the absence of contrary intent expressed. And no such contrary intent is expressed. Indeed, in disposing of his general property \u2014 in that immediate connection \u2014 he directs that advancements be accounted for, thus showing his purpose to confine this direction to the residue of the estate. Hence, the objection that the legatees sharing in the specific legacy of the bank-stock, who had received advancements larger than others sharing in it, were not required to account for such advancements is unfounded. No objection was made that the grandchildren were allowed to share in the legacy, and the exception raised no question in that respect.\nThe testator devises and bequeaths to his wife certain property specified, and, in addition thereto, \u201calso 'a child\u2019s share, equal with one of my\u201d (his) \u201cchildren, of all ihe property that is not disposed of otherwise in this will, to be hers absolutely and at her own disposal.\u201d He makes no express disposition of his property, real or personal, other than that specifically disposed of to his children, but he declares that \u201cI mean the above named heirs\u201d (certain grandchildren) \u201care to have an equal share of my estate with the balance of my children\u201d (meaning his surviving children), \u201cthe share that the mother or father, if living, would be entitled to.\u201d He thus impliedly disposes of the residuum of his property to his children and grandchildren, and expressly specifies advancements that certain of them, particularly named, must account for. This is substantially in harmony with the statule of distribution of estates, and it seems that he so thought and intended that it should be. His language as to his wife clearly implies his purpose that she shall have \u201ca child\u2019s share\u201d of the residuum of his property \u2014 to put her on an equal footing with his children as to that, and he further points out and provides that a child\u2019s share shall be ascertained by requiring his children to account for specified advancements made at the time he executed his will, and that might be thereafter made before his death. If the children were not required to account for advancements, as specified in ascertaining a child\u2019s part to and with the widow, then she would not get \u201ca child\u2019s share, equal with one of my children, of all the property that is not disposed of by this will \u201d \u2014 she wrould not be on an equal footing with the children as to the distribution of that property. In ascertaining the intention of the testator, it is to be observed that all the provisions as to equality in sharing the property have reference to the residuum, and, in that connection, embrace the wife. It seems that the testator had in view the statute (The Coda, \u00a7 1483), which requires that children, shall account to and with the \u201cwidow of the intestate in ascertaining the child\u2019s part of the estate.\u201d We are> therefore, of opinion that the Court properly required the children to account to and with the widow for advancements, as specified in the will, in ascertaining her share of the residuum.\nJudgment affirmed.",
        "type": "majority",
        "author": "MekeimoN, C. J."
      }
    ],
    "attorneys": [
      "No counsel for plaintiffs.",
      "Messrs. Q. F. Neal and W. H. Bower, for defendants."
    ],
    "corrections": "",
    "head_matter": "JAMES ELLER et al., Ex\u2019t\u2019rs, v. J. W. LILLARD et al.\nWill\u2014 Constiuction \u2014 Executor\u2014Advancements\u2014 Child\u2019s Part\u2014 Residuum.\nA testator left his wife certain personal estate described to be hers absolutely, and certain real estate for life, and then bequeath\u00e9d to her also \u201ca child\u2019s share, equal with one of my children, of all the property not disposed of otherwise in this will and, after making a bequest of part, he further directed that \u201cthe balance of my bank-stock be equally divided between my children, unless it can be more agreeably arranged between themselves.\u201d He further devised to the heirs of T. C. W., his grandchildren, a tract of land theretofore advanced to him (T. C. W.), and remainder in another tract, and added: \u201cI mean the above-named heirs (grandchildren) are to have an equal share of my estate with the balance of my children\u201d (naming them). The will mentions the names of those who had been theretofore advanced, and their amounts, among whom was T. O. W., whose advancement was valued at $5,900: Held, (1) that, in an action by the executor to obtain construction of this will, it was not error in the Court below to require the children and grandchildren to account to the widow for advancements in ascertaining her child\u2019s part; (2) it was not error to allow T. C. W., and others most advanced, to share equally in the bank-stock \u2014 the residuum \u2014 without accounting to those less advanced.\nThis was a civil ACTION, tried \u00e1t September Term, 1890, of Ashe Superior Court, before Merrimon, J.\nIt appears that David Worth died in the county of Ashe in the month of December, 1888, leaving a last will and testament, which was duly proven, and the plaintiffs, the executors therein named, were duly sworn as such. This action is brought by these executors to obtain a construction of the said will in respects specified, against the devisees and legatees thereof. The following is a copy of so much of the will as need be reported here:\n\u201cI devise and bequeath to my beloved wife Elizabeth the home tract of land and adjoining tracts, excepting the one-hundred-acre tract called the Prather.tract, and about one acre, including the church called Worth\u2019s Chapel; also the bounty tract of land estimated at one thousand acres, the home tract, estimated at about four hundred and seventy acres, including one-half of the grist-mill, including one acre of land including the mill, for the term of her natural life; also, all my household and kitchen furniture of every description, all my farming tools necessary for farming purposes; also, my family carriage and buggy, with the appurtenances thereunto belonging; also, two cows \u2014 her choice; also a child\u2019s share, equal with one of my children, of all the property that is not disposed of otherwise in this will, to be hers absolutely, and at her own disposal. I devise and bequeath one acre of land, including the church called Worth\u2019s Chapel, to the M. E. Iiolston Conference, South. I also devise and bequeath three hundred dollars of my bank-stock in the bank of Abingdon, Va., to the said M. E. PIol-ston Conference, South, the dividend to be annually applied to the support of the minister at Worth\u2019s Chapel. 1 direct that the balance of my bank-stock in said bank to be equally divided between my children unless it can be more agreeably arranged between themselves. I direct that my stock in the cotton mills at Roswell, Cobb County, Ga., to be sold on a credit of nine months, with interest from day of sale, with bond and approved security, title reserved until paid. I devise and bequeath to the heirs of my deceased daughter, M. C. Wilcox, former wife of M. E. Wagner, deceased, viz., Lilia Wagner, now Wright, also Marianna Wilcox; also to the heirs of my deceased daughter, R. C. Cowles, viz., David W. Cowles, Carrie L. Cowles and Cora A. Cowles; also the heirs of my daughter, J. L. Benham, viz., Deetle Benh\u00e1m and E. W. Benham; also to the heirs of my son, T. C. Worth, deceased, viz., Walter H. Worth, Elma C. Worth, Jennie M. Worth and Joseph C. Worth, the tract of land that I advanced for the benefit of the last named four children, whereon they now reside. I devise to R. C. Worth, widow of T. C. Worth, deceased, the tract of land of about two hundred and thirty acres, whereon she now resides, to be her property during her natural life, then to T. C. Worth\u2019s heirs as above named. I mean the above named heirs are to have an equal share of my estate with the balance of my children \u2014 the share that the mother or father, if living, would be entitled to, viz., E. C. Lillard, A. L. Lide and A. E. Penn, after taking out the advancements heretofore made or hereafter made. M. C. Wilcox has received $1,920; E. C. Lillard has received $2,234; R. C. Cowles has received $1,455; T. U Worth has received $5,980; J. L. Benham has received $1,596; Lillie Wagner has received $237; A. L. Lide has received $3,576; A. E. Penn has received $1,725. Reference may be had to a leather-back pocket diary in the iron safe for advancements made up to this date, or hereafter.\u201d\nThe following is so much of the judgment of the Court below as is excepted to by the appellants:\n\u201cAll the parties in interest being before the Court, and represented by counsel, and the w'hole matter being considered, the said clauses of said will are construed as follows:\n\u201c1. Th\u00e1t after paying the bequests to the church therein mentioned, the residue of the bank-stock is to be divided equally among the children and grandchildren of the testator, the said grandchildren taking per dirpes, and, in this fund, that is, the bank-stock, the widow of the testator is not entitled to share, nor is she entitled to have the said bank-stock accounted for in any interest that she may take-under this will, as said bank-stock is held to be a specific legacy.\n\u201c 2. That, in ascertaining the child\u2019s part devised to the widow of testator, she is entitled to require each of the children, and grandchildren representing children, to account for the advancements made by the testator in his life-time, except as to advancements that have been disposed of otherwise in this will, to-wit, the tract of land advanced to'T. C. Worth at the price of $2,000, and any other lands, if any, advanced to any other of the children.\u201d\nThe appellants assign as grounds of error that the Court below required \u201cthe children and grandchildren of the testator to account to the widow for the advancements made to them by the testator in ascertaining her (the widow\u2019s) share of one child\u2019s part,\u201d and allowed \u201c T. C. Worth and the others who have been most advanced to share in the bank-stock without accounting for such advancements to those who have been less advanced.\u201d\nNo counsel for plaintiffs.\nMessrs. Q. F. Neal and W. H. Bower, for defendants."
  },
  "file_name": "0486-01",
  "first_page_order": 522,
  "last_page_order": 527
}