{
  "id": 8691045,
  "name": "Isaac Fraser v. Joseph M. Alexander, et. al.",
  "name_abbreviation": "Fraser v. Alexander",
  "decision_date": "1833-12",
  "docket_number": "",
  "first_page": "348",
  "last_page": "352",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Dev. Eq. 348"
    },
    {
      "type": "official",
      "cite": "17 N.C. 348"
    }
  ],
  "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": [],
  "analysis": {
    "cardinality": 567,
    "char_count": 11082,
    "ocr_confidence": 0.382,
    "pagerank": {
      "raw": 8.410762629595627e-07,
      "percentile": 0.975923692848502
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    "sha256": "99dbaafb8822e4e96c0039547aac13d3b55b7d2079cd49d8b2ccb8a1b1a875b9",
    "simhash": "1:1a4678c1ca60ad67",
    "word_count": 1954
  },
  "last_updated": "2023-07-14T20:04:28.297091+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Isaac Fraser v. Joseph M. Alexander, et. al."
    ],
    "opinions": [
      {
        "text": "XtuiTiN, Chief Justice.\nThe cause being set down for hearing upon the hill and answers, and the mistake in drawing the will, not being admitted in the answer *\"c !iex^ ^in, v,,b\u00b0 alone could effectually admit it, the allegations of the bill upon that subject must be de-ciar\u00b0d n0'1: to bo established, and the case must be decided upon the construction of the will as written. The i-'0111\u2019* however, wot()d not he understood as intimating an opinion, that it would have been otherwise, if the mistake had appeared upon evidence, or even by the answer. It is intended, as the questions of the admissibility of proofs, and of their effect do not arise in the case, to leave them altogether unaffected by the decision.\nIn the court of equity it was declared that the proceeds of the slaves of the testatrix, devolve upon her next of kin, as being undisposed of by the will, From that decree the trustees of the religious societies, to which the charitable bequests are made, appealed; and the only question made here is, whether the decree in that respect is right. I fully concur in the opinion delivered by the judge. I should think with him, if the whole depended on the first clause of the will alone. It is true the testatrix set out by declaring that she intends to dispose of \u201c what worldly estate it had pleased God to bless her with,\u201d and next says \u00a3<it is my will, that all my properly, &c. shall be sold at public sale, and the money arising therefrom disposed of as follows :\u201d which is sufficient, unless qualified by something else, to carry every tiling. But here, after those general words \u201call my property,\u201d follow \u201cconsisting of lands, stock of every kind, household and kitchen furniture, wagon and farming tools :\u201d which, I think, do qualify the force of the preceding larger terms, and con-iine the bequest to the.subjects particularly denominated. Doubtless there may be cases in which a subsequent enumeration would not be held to be restrictive of the general words, if I give \u201call my property and estate, my lands, my slaves, my money on hand and due on bonds,\u201d stock in funds or in hanks, or money due on account might pass. The superadded particulars would, be rather cumulative than restrictivo, and evince that those things were known by the testator to he of the estate, and were intended to be disposed' of; but it would not shew that those things alone were in his contemplation. The legacy would not he confined to the particulars enumerated, because not restricted to them in terms; but the enumeration would rather he considered as defective in itself, and things ejusdem generis might paSs under the broader terms.. But when the term used does not convey the idea, that the testator is endeavor-jng (0 je^ pe understood what kind of things he intends to give, but emphatically to express what things he is giving, the general expressions must be controlled by the particulars, and the bequest confined to the very things specified. Here, \u201call my property\u201d is controlled by \u201cconsisting.\u201d It is not \u201call the property\u201d absolutely; but all that \u201cconsisting of,\u201d or -which consists of land, stock, &c. It is not a defective enumeration of the things intended to be given, but is a precise description of the specific things given, and of all of them. Suppose there had been money or bonds in this case.\u2014 Nobody would have surmised that they were intended to pass as a part of \u201call my property;\u201d especially when it is recollected that besides the restriction on those words, created by \u201cconsisting of\u201d certain particulars, amongst which are not money or debts, there is a provision in the clause, that the property thereby given is to be sold at public sale, which is altogether inapplicable to money, whether due or in hand. If then, one thing, not of the articles enumerated, would not, by reason of the restriction pass by this bequest, how can any other thing not thus specified pass? The restrictive ef-feet of \u201c consisting,\u201d in context with \u201c estate,\u201d or \u201c property,\u201d principally produced the decision in Doe v Hyman, (ante 1 vol. 382,) and in the case cited therein by Chief-Justice Tatxor, of Timewell v Perkins, (2 Atk. 102.)\nThe case of i)oe Hyman, 382,) approved^\u2019\nBut whatever doubt might rest on that clause, standing by itself, it is removed by the subsequent one, which relates to the negroes specially. From that, it is clear they were not intended to pass by the first, because they are directed to be disposed of by private sale \u2014 a manner different from that of the articles enumerated in the first. This difference being in the contemplation of the testatrix, she must be considered as purposely withholding them from the former provision for the sale of the latter. Although she afterwards makes no actual disposition of the proceeds, that does not bring those proceeds again within the operation of the.clause, from which they had been designedly excluded. .\nA direction to sell specific property \u201c and the money thence arising to be disposed of\u2019 in the payment of debts and legacies, makes the latter a charge upon the sales; -\nAnother question is. made in this Court : whether the debts and funeral expenses of the testatrix,and the legacies. of \u00a750 each to her mother and sister, are to be paid out of the surplus,or outof the.fund in which the churches have an interest. In our. opinion tli.e. latter is the proper construction. The general rule is, that.fheresi-due even when bequeathed is the primary fund for such purposes,^although there be a charge upon another part of the. estate. This however is not a question upon the effect of a charge; but rather what is given to each legatee, and out of what fund payable. The penning of-this,. will is very particular. After turning the whole estate, except the negroes, into money, by directing a sale, come these words, \u201cthe money thence arising to be disposed of as. follows, to wit, all my debts aud funeral ex- . penses paid; then to each \u00a750, and all the balance, thatl it go\u201d to the Churches. This is a precise division.apd appropriation of the whole fund, and determines the interest of tiie Churches to he what remains of it, after paying out of this very fund tiie preferred demands. If this fund liad failed, the legacies to the mother and sister woiihl have failed also ; for they are payable out of it. \u201cThe money thence arising\u201d is tp.pay. them. It. is. true, that could not bind creditors \u00bf but the question is as to the intention; and that is what, we are to,consider in determining the legacies in charity. The balance is given; of what ? Of the money arising from the sale, out of which liad before been given a sum to pay debts and legacies. These are first given out of this particular fund ami the balance, as the balancq,after answering the other purposes, is given to the Churches.\nThe charges of administration arc to.be paid out of the residue; hut the debts, funeral expenses,and the two legacies of \u00a750 each, must, according to the. express words of the will, be paid out of the proceeds of the sale of the other parts of the estate, as mentioned in the first clause, and the decree reformed accordingly.\nPer Curiam. \u2014 Decree affirmed.",
        "type": "majority",
        "author": "XtuiTiN, Chief Justice."
      }
    ],
    "attorneys": [
      "No Counsel appeared for the legatees in this Court.",
      "Devercux for the next of kin."
    ],
    "corrections": "",
    "head_matter": "Isaac Fraser v. Joseph M. Alexander, et. al.\nUpon the construction of n will reciting an intention to dispose \u201c of what worldly estate\u201d &c. and directing \u201cthat all my property, consisting of lands, stock of every kind, household and kitchen furniture, wagons, farming tools\u201d should be sold at public sale, and disposing of the sales; and in another clause directing the sale of slaves, but making no disposition of the proceeds. \u2014 It was held that the words \u201call my property,\u201d were qualified by the words \"consisting of\u201d and restrained to the enumerated subjects, and that the sales of the slaves went to the next of kin.\nThe bill stated that the plaintiff having been requested by Sarah Carson to draft her will complied and drew it as follow's :\n\u201cIn the name of God, Amen, &c. and as to whatworld- \u201c ly estate it has pleased God to bless me with, I dispose \u201c of in the following manner : Item, first : It is my will \u201c that all my property, consisting of lands, stock of ev- \u201c ery kind, household and kitchen furniture, wagon and \u201c farming tools, be sold at public sale, and the money \u201cthence arising to be disposed of as follows, viz : all \u201cmy just debts to be paid and funeral expenses, then to \u201c each of my heirs at law, viz : my mother Jinn, and \u201csister Nancy, I give and bequeath the sum of fifty dollars each, provided they should call for it in the space \u201cof three years from this date, and all the balance it is \u201cmy will that it go to the use of the Presbyterian church- \u201c es in the following manner : After paying the expenses of settling my estate, the.one-third to Hopewell \u201c Church, one-third to Sugar creek Church, and the oth\u201cer third to the use of Pan creek Church. It is my \u201c will that my Executor sell my negroes at private sale, \u201cgiving to each one of them a choice of masters, that can \u201c make a choice. It is my will that Isaac Fraser execute \u201cthis my last will and testament, and I do hereby revoke \u201c any and all former wills by me heretofore made, wit\u201cness, &c.\u201d\nThe plaintiff averred that the negroes were expressly included in the first clause, giving the property to the three churches, and were stricken out of it solely to enable the executors to sell them at private sale, and thus permit them to select their masters. That the plaintiff an(,\u2018 ^iC testatrix both thought there was a clear disposi-tion of the proceeds of the sale of the slaves, similar in a\u00a1j respects, to that of the other parts of the estate- The trustees of the three churches, and the next of kin were made defendants, and the prayer was to have the mistake corrected, or to have a declaration made of the title of the Churches to the proceeds of the sale of the slaves.\nCan a mistake in drafting a will, uponarproofsUlor tlie answer of the corrected\nThe next of kin denied any mistake in the draft of the will to be within their knowledge, and insisted upon their right to the sales of the slaves.\nThe cause was heard upon bill and answer before Seaweed Judge, at Mecklenburg on the last Spring Term, who ruled,\n1st. \u201cThat the hill and answer fell short of ascertaining satisfactorily the truth of the alleged mistake.\u201d\n2d. Upon the construction of the will that \u201c although it professed to dispose of what worldly estate the testatrix possessed, which words were equivalent to all her estate, yet that the proceeds of the sale of her negroes ivas not disposed of; that it might be said of the testatrix, voluit sed non dixit. That the legatees, if they take at all, must do so by an express bequest or by a necessary implication of one, neither of which appeared. That the next of kin are those on whom the law casts the estate in default of a different disposition.\u201d His Honor then proceeded to ascertain the several sums due the legatees, and the next of kin, and decreed accordingly, from which the trustees of the churches appealed.\nNo Counsel appeared for the legatees in this Court.\nDevercux for the next of kin."
  },
  "file_name": "0348-01",
  "first_page_order": 355,
  "last_page_order": 359
}