{ "id": 11274069, "name": "Micajah Ricks, and Milberry his wife, Thomas and Teakle Ricks, vs. Pilgrim L. Williams and Wilson Taylor, Executors of Rowland Williams; The same Defendants as Plaintiffs, vs. The same Plaintiffs as Defendants", "name_abbreviation": "Ricks v. Williams", "decision_date": "1826-12", "docket_number": "", "first_page": "3", "last_page": "11", "citations": [ { "type": "nominative", "cite": "1 Dev. Eq. 3" }, { "type": "official", "cite": "16 N.C. 3" } ], "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": "3 Hawks 604", "category": "reporters:state", "reporter": "Hawks", "case_ids": [ 11277992 ], "opinion_index": -1, "case_paths": [ "/nc/10/0604-01" ] }, { "cite": "4 Hawks 393", "category": "reporters:state", "reporter": "Hawks", "case_ids": [ 8682230 ], "opinion_index": 0, "case_paths": [ "/nc/11/0393-01" ] } ], "analysis": { "cardinality": 799, "char_count": 16317, "ocr_confidence": 0.348, "pagerank": { "raw": 3.04604750851012e-07, "percentile": 0.8555788387662756 }, "sha256": "072f5a8b56c88110a7aea196db2a4c081b7eba52e44c2525df9a910a36b4e222", "simhash": "1:8739163f2487a4d7", "word_count": 2799 }, "last_updated": "2023-07-14T18:48:17.309620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Micajah Ricks, and Milberry his wife, Thomas and Teakle Ricks, vs. Pilgrim L. Williams and Wilson Taylor, Executors of Rowland Williams. The same Defendants as Plaintiffs, vs. The same Plaintiffs as Defendants." ], "opinions": [ { "text": "The Court held this case under advisement until this term, when their opinion was delivered by\nHenderson, Judge:\nI think in principle, this question was decided at the last term, in the case of Whitfield\u2019s will, (4 Hawks 393,) for if \u201c heirs,\u201d when applied to personal property, mean those who are called by law to succeed to the dead man_ they bring with them their representative and collective character \u2014 and however the property may be divided among themselves, as individuals composing a body, yet as to others, they are an unit, and make but one person, the representative of their ancestor or propositus; and so, whether they take by descent or purchase, it is de-signatio personae, not personarum. I refer to the reasons and authorities in the case of Stowe v. Ward, (ante 67) decided at this term, to support this position throughout; in fact, the cases are, to my mind, precisely alike $ the only difference is, in that case it is real property; in this, it is personal: in either, however, the word \u201c heir\u201d has the same meaning as to its representative and collective character. 1 am not aware of any authorities, except those cited, and attempted to be disposed of in the case of Whitfield\u2019s will. That this construction meets the Testator\u2019s wishes in this will, I have not a doubt. It is plain from the words, he intended a division by stocks or families \u2014 and he could not have used a more appropriate word than \u201c heirs of my daughter Priscilla,\u201d to call them in as a stock or share. I must again express my regret for the decision in tiie case of White-hurst\u2019s heirs \u2014 it cannot be supported.\nThe decree in this case must be reversed, and an account; taken of the money paid under it \u2014 and the property mentioned in the residuary clause of Howland Williams\u2019 will, must he divided into five equal parts \u2014 one of which is decreed to each of the children of the testator, to wit, Pilgrim, Diana, Charity and Elizabeth, and one-half of the remaining fifth to Micajah Hicks, and the other half of said fifth, equally between Thomas Micks and Teakle Ricks, and for this purpose, the master will take an account.\nThere being in this case both bill of review, and a petition to rehear \u2014 the bill of review must be dismissed, but without costs \u2014 The loose practice in our Courts of Equity rendering it somewhat difficult to ascertain the propriety of using the one or the other \u2014 and these proceedings were commenced before the decision in the case of Jones and Zotticoffer, where the matter was very fully discussed and settled.\nDecree set aside.", "type": "majority", "author": "Henderson, Judge:" } ], "attorneys": [], "corrections": "", "head_matter": "IN EQUITY.\nMicajah Ricks, and Milberry his wife, Thomas and Teakle Ricks, vs. Pilgrim L. Williams and Wilson Taylor, Executors of Rowland Williams. The same Defendants as Plaintiffs, vs. The same Plaintiffs as Defendants.\nFrom Nash.\nIn a devise of personalty, \u201cto be equally divided between my son P, tny daughters D, C, and E, and the heirs of my daughter P,\u201d held, that the latter take hut one-fifth among them.\nA petition for a rehearing is the proper remedy against an interlocutory decree.\nHowland Williams, by his will, after sundry specific legacies, devised all the residue of Isis estate to be sold, ** and the money to he divided equally, between my son Pilgrim L. Williams, and my daughters Diana, Charity and Elizabeth, and the lawful begotten heirs of the body of my daughter Pris\u00e1lla.\u201d\nThe Plaintiff Milberry is the daughter, and the Plaintiffs Thomas and Teakle, the grandsons of Priscilla, and claim to have the residue divided into seven equal parts.\nOn the Spring Circuit of 1821, his honor Judge Mash by an interlocutory decree, directed tiie residue to be divided according to tiie prayer of the bill. A bill of review, and a petition for a rehearing were filed, and the cause stood in this Court upon the original bill, and tiie hill of review, both having been transferred to this Court,\nThis cas\u00e9 was twice argued, viz. at December Term, \u00cd824, and at December Term, 1825, a note of which, the present reporters have been furnished with.\nGaston against tiie decree. \u2014 Howland Williams bequeaths as follows : \u201c 1 leave the rest of my estate to be sold, and the money to be equally divided between my son ^\u00a7\u2122n> an<^ my daughters Diana, Charity and Elizabeth, and the lawful begotten heirs of my daughter priscilla.\u201d Priscilla was then dead \u2014 had left surviving, and who were living at testator\u2019s death, a daughter, sX.Milberry Picks, and two grandsons, Thomas and Teakle Picks, children of a deceased son.\nThe decree ordered a division, per capita, between Pilgrim, IHnaa, Charity, Elizabeth and Milberry, Thomas and Teakle.\nit was erroneous :\u2014\n1. if the words \u201c lawful begotten heirs of my daughter Priscilla,\u201d are sufficiently definite of themselves, without reference to the statute of distributions, to point out tbe objects of testators bounty, they designate her children, and her two grandsons are not embraced within them.\nThese words \u201c heirs of the body,\u201d or \u201c heirs lawfully begotten of a certain person,\u201d when used as words of purchase, and especially in gifts of chattels, are synonl-mons with \u201c children.\u201d\nIt is so often in dispositions of real property, see Doe deni. Long v. Lardng, (2. Bur. 1106,) and Goodlittle v. Herring, (1 East. 264.)\nItis i heir established meaning in bequests of personalty. (.Loveday v. Hopkins, Ambler, 27 S \u2014 Jacobs v. Amyatl, 4 Ero. 542 \u2014 Wilson v. Vansittart, Amb. 562 \u2014 2 Moper on Legacies, 402.)\nOn this point also, \u00cd claim the benefit of tbe opinion of a majority of the Court, in Whitehurst v. Pritchard, (l Mur. S85.)\nWhere a bequest is made to \u201cchildren,\u201d grandchil-' dren do not take, unless there be no child, or tbe context shews that the word was designed to have a meaning more, extensive than properly belongs to it. (See Loveday v. Hopkins, Amb. as above \u2014 Crookc v. Brooking, 2 Ver. 106 -Peeves v. Brymer, 4 Vcs.jr. 692-1 Bop. on Leg. 106,107.)\nIf the word \u201cheirs\u201d be synonymous with next of kin. it does uot, as such, take in the grandchildren.\n\u00edm every sense in popular and lega! parlance, a child is nearer of kin than a grandchild. (2 M. Com, COG, 504,5.)\nGrandchildren take as next of kin, by \u00a1batoje of distribution, only when tliere are no children, '\"'hey take, not sm next of Jdn, but by virtueof a capacity bestowed on them, as representing next of kin, whenever there is a child.-\u2014 (Toller.')\nThis view of the case is consistent with, and perhaps demanded, by a numerous class of adjudications which decide, that when a gift is made by words of definite description, such as children of A. B.\u201d the donees take not as representatives, but as designated individuals, as though they had been severally named. (Maekler v. Webb, 2 P. Wms. 383 \u2014 Butler v. Stratton, 3. Bro. 3(iT \u2014 Wild r. Bradbury, 2. Ver. 705 \u2014 Davenport v. \u00edlanbunj, 3 Ves.jr. 259.)\n2. These words \u201c heirs lawfully begotten of my daughter,\u201d may have been used as indicating \u201c persons lawfully representing my daughter.\u201d if so, the grandsons take with her daughter \u2014 but these take as such representatives, and take one share only.\nThe subject matter is personality \u2014 therefore, heirs strictly speaking, cannot be meant.\nThere is a strong analogy between lineal descendants succeeding to the personalty, and lineal descendants inheriting the land of a deceased ancestor.\nIt is our duty to take the word as nearly to its proper sense as it will admit.\nThen it means that class of persons who represent her in succession to personalty \u2014 who would succeed to her undisposed money and chattels.\nThis is the opinion of a great Judge. (Holloway v. Holloway, 5 Ves.jr. 402.) So have similar words been understood. (Bridge v. Mbott, 3 Bro. 224. Long v. Blackfill} 3 Ves. jr. 486.)\nIf this be the meaning of these words, then these \u201c legal representatives\u201d take together an equal share with the persons named.\nThe statute of distributions directs an equal division among the children of an intestate, and the legal representatives of a deceased chiI3.\"*(Toller, & act 1766, ch. 79.)\nThe equality of division, is as precisely ordered in this statute, as in the Will 'dhder consideration.\nHad Taylor made no will, the law would have ordered a division nearly in the words, which he has here used.\nWhy should the same words used by him, receive a meaning different from that appropriated to them when found in a statute, and deliberately penned.\nIs there less liberality shewn in expounding the words of an illiterate man, when inops concilii than of an Assembly representing the wisdom of the community.\nIf \u201c heirs, &c.\u201d be equivalent to \u201c lawful representatives,\u201d then they take as representatives what would have been given to her whom they represent.\nThere is no more incongruity in these persons taking under the will, as representatives of one to whom nothing had passed, than in children taking, under a statute, (a general will for intestates,) under one to whom nothing had accrued.\nBut it is objected, that this construction is forbidden by another class of adjudications, on the words \u201c relations,\u201d \u201c kindred,\u201d &c.\nThis class of cases has settled, that such vague words shall be limited in their extent by the statute, but the division shall be wholly independent of the statute. (TAo-mas v. Hale, Ca. Tem. Talbot 251 \u2014 Greene v. Howard, 1 Tro. 31.)\nThese decisions are wrong in principle; the Court in order to expound the will, imply a reference to the sta-tuto of distributions. The construction ought therefore, to have been the same as if this reference was expressly \u2022' * v contained in the will. If the reference had been expressed \u201caccording to the statute of distributions\u201d the statute would have explained the equal division, as well as ascertained those between whom it is to be made.\nThis is admitted by one of the strongest champions* for this doctrine and most zealous extender of its application, Mr. Justice Butter. (Phillips v. Garth, 3 Bro. 68.)\nBut the present question is not affected by those decisions. The words are either definite in themselves, and require no reference to the statute to limit their generality, or they are of the same import with those used in the statute, and in connection with a like context must receive the same interpretation- Justice Butter indeed, thought otherwise, (Phillips v. Garth.') But he was opposed by an authority at least of equal respectability, Ld. Tlmrlow, and acknowledged that lie was violating an authority greater than either of them, plain good sense.\nThis view is strengthened by the principle to be extracted from fVythe v. Thurlston, (1 Ves. sen. 3 96) commented on in Davenport v. Ifaiibury, (3 Ves. jun. 259, 260.) Where there is enough on the will to shew that \u201cchildren,\u201d &c. are used as representatives or substitutes, in common parlance \u201c heirs,\u201d of their parent, they take in that capacity, and the share which would have been allotted to that parent\nBadger, in support of the Decree.---Two questions are made upon the residuary clause in the will. 1. Do the grandchildren of Priscilla, take with her children under the description \u201c lawfully begotten heirs.\u201d 2. If they fake, in what proportions.\nCourt. (After a moments consultation.) It is unne-necessary for you to discuss the first question.\nBadger. \u2014 it is clear they are entitled per capita, by force of the words \u201cequally to lie divided/\u2019 which are equivalent to \u201cshare and share alike,\u201d and importa tenancy in common.\nThis has been settled by a series of adjudications, Up0n expressions exactly analogous to those in this will. Where the bequest was \u201cequally to son J. sou P\u2019s children, daughter T. and daughter W!$ children,\u201d it was held that all were entitled equally per capita, as if severally named. (Bladder v. Webb, Z P. Wins. 383.)\nSo where the words were \u201c equally between R. G. J. 8. and the children of M. P.\u201d \u201c equally between descendants of T. F.\u201d aud among the descendants of T. F. there were children and grandchildren \u2014 held all were entitled per capita. {Butler v. Stratton, & Brown C. C. 366.)\nSo \u201c to be divided among next ofkiu share and share alike.\u201d (Philips v. Garth.')\nIn the last case, there was no difference between Mr. J. Butler and Ld. TJmrlow, as to the proportions in which the grandchildren should take, as seems to be supposed by the Counsel on the other side. Butter thought the grandchildren entitled \u2014 the Chancellor inclined that they were not entitled at all; but if entitled, both agreed that upon authority, they should take per capita, though both doubted the original propriety of the decisions.\nThis is evident from what fell from Ld. Thnrlow, in Bayner v. Mowbray, (3 Brown, 335.)\nIt is in vain, that the Counsel allege these decisions to be wrong in principle. Even if wrong at first, the;/ have fixed the law, and cannot, without great mischief be now overturned. Ld. Thurlow, in the last case, said in reference to these very decisions, \u201c where once a rule has been laid down, if is best to abide by it. We cannot always be speculating what would have been the best decision in the first instance.\u201d\nAnd this Court, at the last Term, felt the weight of authority to be so great, that they reluctantly decreed a partition per capita, under a clause in a will, strongly radicating that an equality of division between the stocks .\u00fc* families and not the persons, was designed by the tes-iator. (Sloxve v. Ward, 3 Hawks 604.)\nTaking the words \u201c lawfully begotten heirs\u201d to be equivalent to \u201cnext of kin,\u201d an argument has been drawn from the statute of distributions, here and in England, to shew that the grandchildren can take only in place of their parent and per stirpes. It is supposed that \u201c next of kin\u201d is used in the statute to signify those nearest of blood, and in equal proximity to the istestate. An examination of the statute will shew this supposition to be unfounded. Our statute (a transcript of the English, with only one or two barely literal variations) recognizes the right of representation as existing by law, and of course referring to the descent of real estate, and does not use the words in question, until it comes to provide for a distribution where there arc no descendants of the intestate. The words are, \u201c and in case there should be no children, &c.\u201d \u201cthen one moiety &c\u201d \u201cthe residue of the said estate to be distributed equally to every of the next of kin of the intestate, who are in equal descree, am! to those who legally represent them.\u201d ,\nBy adding to the words next of kin, the qualifying expression who are i;i equal degree, it is dear the former words did not of themselves import what is expressed by the latter. The Legislature must have supposed, that in their sense of the words, there might be next of kin, some nearer in blood than others, yet all next of kin. For otherwise, the expression added is without use or meaning, it is mere tautology.\nBut if \u201c next of kin\u201d means those who are themselves nearest of blood, and also those who represent persons deceased, who were nearest of blood, there is a propriety and even necessity, for every word, in order to convey what the Legislature meant.\nDissect the clause \u2014 equally to every of the next of kin.\u201d By ihcae words, brothers and sisters, and the -\u2022Huleen of deceased brothers asid sisters, would all have taken equally per capita. But this was not intended. \u2014 \u2022 Hence tlie words \u201c who are in equal degree\u201d were added. Had the clause stopped here, brothers and sisters surviving would have taken, as being the nearest in equal degree, to the exclusion of the children of a deceased brother or sister. But this was not intended, and hence the words \u201c and to those who legally represent them,\u201d are superadded ; by which the equality of distribution is confined to those who are in equal degree; and the representatives of one who was in equal degree, take his equal share among them.\nConsequently, where in a will the words \u201c next of kin,\u201d or words of equivalent meaning are used, they point out all who would take under the statute, and i\u00a3 the words \u201c equally\u201d or \u201c share and share alike\u201d be added, they all take per capita, as they would have done under the statute, had the expression been \u201cequally to every of the next of kin\u201d without the explanatory words. The words designate the persons by reference to the statute, and the will fixes the proportion, which is equal to each by force of the words \u201c equally to be divided.\u201d" }, "file_name": "0003-01", "first_page_order": 7, "last_page_order": 15 }