{
  "id": 2100097,
  "name": "JAMES M. DENNY & AL. vs. JAMES CLOSSE & AL.",
  "name_abbreviation": "Denny v. Closse",
  "decision_date": "1845-12",
  "docket_number": "",
  "first_page": "102",
  "last_page": "105",
  "citations": [
    {
      "type": "nominative",
      "cite": "4 Ired. Eq. 102"
    },
    {
      "type": "official",
      "cite": "39 N.C. 102"
    }
  ],
  "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": {
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    "simhash": "1:9c63ab9c902dddf4",
    "word_count": 980
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  "last_updated": "2023-07-14T20:48:00.619362+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JAMES M. DENNY & AL. vs. JAMES CLOSSE & AL."
    ],
    "opinions": [
      {
        "text": "Nash, J.\nThe claim of the plaintiffs rests upon the ground, that the bequest to the children, after the death of the widow,'was a vested remainder, and vested in all the children of James McMurray, who were alive at his death ; and that, consequently, it made no difference at what time any of the children might die, whether before or after the falling in of the life estate. The testator seems to have been aware, that questions of that kind had before then arisen upon the construction of wills, and entangled and perplexed the settlement of estates, and has clothed his intentions in language that cannot be mistaken. The intention of the testator is the governing rule in the construction of wills, upon the principle, that the law accords to every man the right to dispose of his property after bis death, as he shall please. If, therefore, his intention can be ascertained from the will, and it contravenes no rule of, law, that intention shall be carried into effect. It sometimes becomes very difficult to ascertain, what is the true meaning of a will; and the Courts have been compelled to adopt various rules, as indicating the will of the testator, which in such cases will be observed. Here there appears to be no difficulty in ascertaining the wishes and design of the testator. The remainder men are such of his children as shall be alive, at the time the life estate falls in. The words are precise \u2014 \u25a0\u201c to be enjoyed by her (his widow,) during her natural life, and at her death, &c. to be divided among all my children, that are then alive.\u201d The testator does not choose to leave any thing to speculation. He not only fixes the time at which the property shall be enjoyed, but by whom. It is impossible, by authority or argument, to make his meaning more apparent, than he has himself done ; and the will furnishes abundant evidence, that the phraseology used was not lightly nor ignorantly adopted. In the clause of his will next succeeding, he gives to his wife the remainder of his lands, not previously disposed of, during her life, &c., remainder to his son, John McMurray, if he is then living, \u201c but if he shall die before that time, the land previously given to his wife for life, &c. is to be sold, and the proceeds to be equally divided among all my children then living.\u201d In a subsequent clause he directs, that certain property shall be put into the possession of his wife, upon her giving bond, <fcc. and, if she declines taking it upon 'the conditions specified, then it is to be sold, and, after payment of his debts, \u201c to be equally divided between my wife Elizabeth McMurray, my son John, my daughter Uphia, and my daughter Hannah.\u201d And again, in the succeeding clause, he leaves a negro man to his wife for ten years, to assist in raising his youngest children, and, at the expiration of that time, to be sold, and the money \u201c to be equally divided between my wife, and my children that are then living.\u201d It is manifest the testator well, understood the meaning of the words he used, and that he varied them, as occasion required, to meet his wishes in the disposition of his property. The objects of his bounty were his own children ; and he had a legal right to dispose of his property as he chose.\nWe have examined the authorities to which our attention has been directed. There is nothing in them, to change the view we have taken of the case. They only prove that the word \u201c children\u201d may, under peculiar circumstances, mean \u201c grand-children;\u201d as where the meaning of the testator is uncertain, and the bequest must fail, unless such construction be given. That is not the case here. The Bill must be dismissed with costs.\nPer Curiam.\nDecree accordingly.",
        "type": "majority",
        "author": "Nash, J. Per Curiam."
      }
    ],
    "attorneys": [
      "Morehead, for the plaintiffs.",
      "Kerr, for the defendants."
    ],
    "corrections": "",
    "head_matter": "JAMES M. DENNY & AL. vs. JAMES CLOSSE & AL.\nA testator bequeathed to bis wife a certain slave for ber life, and, after her death, the slave to be sold, and the issue of the slave together with the money arising from such sale, to be equally divided among all his children \u201c that are then living.\u201d Meld, that the issue of such of, the children, as died during the life-time of the legatee for life, took no interest under this bequest.\nThe word \u201c children\u201d in a will sometimes, but only under peculiar circumstances, is construed to mean \u201c grand-children as whore the meaning of the testator is uncertain, and the bequest must fail unless such construction be given.\nCanse removed by consent from the Court of Equity of Guilford County, at the Fall Term, 1845.\nThe Bill was filed to obtain a construction of the Will of James McMurray. By his Will, the testator, after giving to his wife some perishable property, bequeathes as follows :, \u201cI also give and bequeath to her my negro girl Mary, to be enjoyed by her during her natural life, and at her death, I allow the said negro to be sold, and her issue, if she should have any, and the money arising from the said sale, to be equally divided among all my children that are then living.\u201d At the time of his death, James McMurray left seven children surviving him, two of whom, to-wit, Jane, who intermarried with William Denny, and Polly, who intermarried with William Doak, died before the widow, the tenant for life. The plaintiffs are the children of Jane. The widow is dead, and tho Bill claims, that the plaintiffs, the children of Jane Denny, are entitled to one-seventh part of the proceeds of the negro Mary and her increase, as standing in the place of their mother, and representing her in the division of the property.\nMorehead, for the plaintiffs.\nKerr, for the defendants."
  },
  "file_name": "0102-01",
  "first_page_order": 110,
  "last_page_order": 113
}