{
  "id": 2101554,
  "name": "JESSE WARD'S Ex'rs. vs. WILLIAM SUTTON & AL.",
  "name_abbreviation": "Ward's Ex'rs v. Sutton",
  "decision_date": "1848-12",
  "docket_number": "",
  "first_page": "421",
  "last_page": "424",
  "citations": [
    {
      "type": "nominative",
      "cite": "5 Ired. Eq. 421"
    },
    {
      "type": "official",
      "cite": "40 N.C. 421"
    }
  ],
  "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": "1:2234e5c10518e2ae",
    "word_count": 1312
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  "last_updated": "2023-07-14T21:21:43.010911+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JESSE WARD\u2019S Ex\u2019rs. vs. WILLIAM SUTTON & AL."
    ],
    "opinions": [
      {
        "text": "Ruffin, C. J.\nOne of the points raised in this case is, whether Mrs. Harper\u2019s and Mrs. Jarman\u2019s grand-children, whose parents were dead, take any part of the gifts to those two families. The gifts being to \u201cchildren,\u201d the general rule is, that, when there are persons who answer that description, grand-children cannot take under it. The subsequent use of the term \u201cfamilies,\u201d in the gift to Isaac Ward\u2019s children, cannot affect the application of the rule ; for it refers to the preceding part of the clause in which it is seen, that Mrs. Harper\u2019s \u201cfamily,\u201d consisted of her \u201cchildren,\u201d and Mrs-. Jarman\u2019s consisted of herself and her \u201cchildren.\u201d\nAnother point is made as to the amount of the share or part of the share given to the nephew', Spight The will says he is \u201cto be equal with the two Koonce children in said residue.\u201d The legatee is to have a share of the property, if it can be reasonably ascertained ; and in ascertaining it, words are not to be rejected except upon necessity, either because they are unmeaning or repugnant to other plain provisions of the 'will. Every word is to be retained and a sensible meaning put on it, if possible, so as to effectuate the apparent intent; and, if it be necessary to the sense, words and even sentences may be transposed. Those are settled principles of construction, reasonable in themselves and of obvious utility ; and, when applied to this will, they seem to point out its just interpretation.\nIt is said, that as there were in fact three of the Koonces instead of two, the word \u201ctwo\u201d is to be struck out, so as to make the will read, that Spight is \u201cto be equal with the Koonce children.\u201d That being done, then, it is contended, on the one hand, that Spight is to be equal with the Koonce children in the share of the residue previously bestowed on them,\u201d or, on the other, that Spight is to have a distinct share in the residue equal to that of the Koonces. With respect to the first position, it is to be remarked, that if such had been the testator\u2019s meaning, he would have expressed it at once in the simple, but comprehensive, terms, \u201cmy sister Winifred\u2019s children-\u201d Besides, the provision with respect to Spight is that he shall be equal to the Koonces, not in their share of the residue, but \u201cin said residue,\u201d that is, in the whole residue. This would esi tablish the second of the above positions to be the true meaning, and Spight would have as much of the residue as all three of the Koonces together. But that, for other reasons, is as inadmissible as the former construction. For, the effect of either would be not only to strike \u201ctwo\u201d out of the will altogether, but also to leave a part of the residue undisposed of, contrary to the words and the clear general intention of the testator. For, the testator, by the direction as to the equal division of his property, gives to Mrs. Harper\u2019s children one share of it, to Mrs. Jarman and her children another, to the Koonce children another, and half a share to the two children of Isaac Ward; and, then, according to the hypothesis above, he gave to Spight either a share of the Koonce share or a distinct and full share of the whole. Take it either way, and the result is, that there would be an intestacy as to a part; for in the one case, there would be given away three shares and a half, the whole into four equal parts to be divided ; and in the other, four and a half, the whole into five equal parts to be divided. Those incongruities prove to our apprehension, that the meaning does not require nor admit \u201ctwo\u201d to be struck out of the will, though it cannot stand where it does, because there it is repugnant and absurd. It follows, that by transposition it must be applied to other persons, so as to make the whole provision consistent and sensible. That is done, we think, by reading the will \u201cthe two Ward children,\u201d instead of \u201cthe two Koonce children.\u201d Isaac Ward had in fact two children, who are mentioned just before in the same clause not only as his brother\u2019s children, but are described by the names and number. By giving that application to \u201ctwo,\u201d the whole residue pass' es by the clause ; for Mrs. Harper\u2019s, Mrs. Jarman\u2019s, and the Koonce families get one share each, \u201cthe two Ward children\u201d get half a share, and Miles W. Spight gets the remaining half a share, and is thus made equal to the Wards. The question in reality is, whether \u201ctwo\u201d is to be erased or transposed. Neither is allowable, if all the words can retain their present position and be sensible. But one or the other must of necessity be done in this case ; and between them the alternative is to be preferred, which reconciles the different dispositions and effectuates the apparent intention.\nPer Curiam.\nDeclared accordingly.",
        "type": "majority",
        "author": "Ruffin, C. J. Per Curiam."
      }
    ],
    "attorneys": [
      "J. H. Bryan, for the plaintiff.",
      "No counsel for the defendants."
    ],
    "corrections": "",
    "head_matter": "JESSE WARD\u2019S Ex\u2019rs. vs. WILLIAM SUTTON & AL.\nWhen gifts in a will are to \u201c children,\u201d the genera! rule is, that, when there are persons who answer that description, grand-children cannot lake under it.\nA. devised all the residue of his estate as follows \u201c to be equally devided between Laney Harper\u2019s children, Sarah Jarman and her children, Isaac Ward\u2019s two children Elizabeth and Laney, 4'c. and Winifred Williams\u2019 Koonce children to be equal in said residue with Laney Harper\u2019s and Sarah Jarman and her children, and my nephew Miles W. Spighttobe equal with the two Koonce children\u201d \u2014 and there were three of the Koonce children. Held that the Court could not strike out the word \u201c two\u201d in the bequest toSpight, but to effect the intention of the testator that word must be referred to Ward\u2019s children.\nCause removed from tbe Court of Equity of Carteret County, at the Pall Term 1848.\nJesse Ward, after several specific dispositions, devised and bequeathed as follows. \u2018-The residue of my property, both real and personal, to be equally divided between Lany Harper\u2019s children, Sarah Jarman and her children, and my brother Isaac Ward\u2019s two children. Elizabeth and Lany, for the two last mentioned to have one-half as much as the other two families, and my sister Winifred Williams\u2019 Koonce children to be equal in the said residue with Lany Harper\u2019s and Sarah Jarman and her children, and my nephew Miles W. Spight to be equal with the two Koonce children in the said residue.\u201d\nThe bill was filed by the executors to have the rights of the residuary legatees declared; and the facts are stated to be these : The testator had a brother Isaac Ward, and three sisters, Lany Harper, Sarah Jarman, and Winifred Williams ; all of whom were dead at the mailing of the will, except Mrs. Jarman. The brother left two children, Elizabeth and Lany, who are mentioned in the will. Lany Harper left several children, who were living at the making of the will and death of the testator ; and she also had other children, who died before the execution of the will and left children. Mrs. Jarman had several children living at the date of the will and the testator\u2019s death, and she had others, who died before the execution of the will and left children. Mrs. Williams had been married three times: The first, to Koonce, by whom she had three children, all of whom were living at the date of the will and the death of the testator: Next, to Spight, by whom she had one child, Miles W. Spight. mentioned in the willLastly, she married Williams, and died before the making of the will.\nJ. H. Bryan, for the plaintiff.\nNo counsel for the defendants."
  },
  "file_name": "0421-01",
  "first_page_order": 442,
  "last_page_order": 445
}