#### Robert Edens and Wife and others v. James Williams’s Executor.

From Bertie.

A. being' seised of a tract of land, and possessed of five slaves, made his will, and therein lent to his wife, during her life, Iris land and three of Ills slaves, with his household furniture and stock. He then directed that if his wife should be ensient with child, such child should be raised and educated by his wife, out of tire income of the property left to her, as -well as all the property he died possessed of. He then bequeathed to liis brother’s two daughters, his other two slaves, tobe dividedbetween them when either of them should marry ; the wife was ensient with child; and one of the brother’s daughters having married, the Executor was called upon to divide the two slaves and their increase between her and her sister.

Held, that upon the construction of the whole will, the brother’s daughters were not to take, if the wife should prove to be ensient with child; and that all the property belonged to the child after the mother’s death.

In construing the. will, the Court will look to the state of the testator’s family, and to the kind and extent of property he owned at the time of making his will.

Robert Edens and Sarah bis wife, and Elizabeth Williams, an infant, by her guardian, filed their bill of complaint in the Court of Equity for Bertie County, against Jehu Nichols, executor of the last will of James Williams, late of Bertie County, and therein charged that the said James Williams, in his last will, which had been duly proved since his death, and of which the defendant had been appointed and had qualified as executor, had bequeathed as follows, to wit, “ I give and bequeath unto my bro- “ ther’s two daughters, Sarah and Eliza Williams, one “ negro woman named Esther and her child Harry, to be “ in the care and under the direction of iny brother Wil- “ liam Williams until either of them marrieth ; at which “ time it is my will and desire, that the said Esther and <s Harry, and the increase of Esther, if any, to be equally “ divided between them. Item — I lend unto my brother “ William Williams, my silver watch during his life. *28« and after bis death, I give the said -watch to his dattgh- “ ^01' Sarah Williams, to her and her heirs and assigns « for ever.” That the defendant took into his possession the property mentioned in the said bequests •, that com-plailiants Sarah and Elizabeth were the nieces of the testator mentioned in the will ; that Sarah had intermarried with Robert Edens ; that William Williams, the brother of the testator and father of the complainants Sarah and Elizabeth, had died ; and he being dead and Sarah having married, the bill charged that complainants were entitled to demand from the defendant, the silver watch and the negro slaves, mentioned in the aforesaid bequests ; that they had applied to the defendant for this purpose, and he had refused to deliver either the watch or negro slaves, the bill prayed that the defendant might be decreed to deliver to the complainants the watch and the negro slaves, and account for the hire of the slaves, &c.

To this hill, the executor, Jehu Nichols, put in Ms answer, and therein admitted the several allegations of the bill; but alleged that he was advised Complainants were not entitled to the watch and negro slaves j for that the testator left his wife ensient Avith child, which was born a feAv months after his death, and was still alive; that the testator had made his will Avith reference to such an event: and that, upon the construction of the whole will, he was advised Complainants Avere not entitled, except in the event that the testator’s wife had not been ensient with child at the time of his death: and he prayed the advice of the Court.

The several clauses of the will referred to by Defendant, in his answer, are in the following words :

“ I lend unto my dear and loving Avifc, Susannah Wil- “ liams, my plantation, and buildings thereunto belonging, “ Avhereon I now live, during her natural life; also lend (< her, my said wife, all my household and kitchen furni-(í ture, except tAvo beds and bedsteads, to be sold by my 6i executors; also one negro man named Jack, one boy *29’ 44 named Daniel, and one negro woman named Jenny, and 44 one sorrel mare named Ludida, and all my stock of 44 cattle and hogs, during her natural life, subject only to 44 the provisions hereafter mentioned.

44 Item — Provided my said wife Susannah Williams 44 should he now pregnant of one or more children, it is 44 my will and desire such child or children shall be raised 44 and educated by my said wife out of the income of the 44 property left to her, ás w7ell as all the property I die 44 possessed of: hut if such child or children should marry, 44 or arrive to the age of maturity, in my said wife’s life-44 time, the one so marrying shall have an equal share of 44 all my negroes and increase, as well as all my other 44 property, except the lands and buildings left to my said 44 wife. But, in case the child or children my wife is 44 suggested to be pregnant with should die before marry-44 ing or arriving to the age of maturity, my wife Susan-44 nah Williams shall have the property in manner as 44 above left to her during her natural life.

44 Item — It is my will and desire that all my property 44 left to my wife, or all she shall inherit from my estate, 44 after her death shall be inherited by my child or chil-44 dren, or for want of such heirs, as hereafter mentioned.

44 Item — I give and bequeath to my niece Sarah Wil-44 liams, my land and improvements thereon, after my 44 wife’s death. 1 also give all the residue of my estate -44 left to my wife her life-time, to be equally divided be-44 tween my brother’s two daughters, Sarah and Eliza 44 Williams, to them, their heirs and assigns forever.

44 Item — I give and bequeath unto my brother’s two 44 daughters, Sarah and Eliza Williams, one negro wo-44 man, named Esther, and her child Harry, to be in the 44 care and under the direction of my brother William 44 Williams, until either of them marrieth ; at which time 44 it is my will and desire that the said Esther and Harry, 44 and the increase of Esther (if any) to be equally di44 vided between them.

*30 “ Item' — I lend unto my brother William Williams my “ s^ver watch during Ms life, and after his death I give « the said watch to Ms daughter Sarah Williams, to her, “ and her heirs and assigns for ever.

« |t js likewise my desire, should I not leave money “ sufficient to discharge all my debts, in that case my {< executors should sell as much of my moveable estate, “ which my wife can best spare, as will make up the ei residue.”

By the Court

Some aid in discovering the intention of the testator may be derived from a consideration of the state of Ms family, and the kind and extent of the property he owned at the time of making Ms will.* His family consisted of his wife only; and it cannot be presumed that he had any other property than that specified in Ms will, wliich consisted only of Ms plantation, household furniture, stock and wearing apparel, together with five slaves. Indeed it is almost certain that this constituted the whole of his estate; because he directs that in the event of Ms not leaving money enough to pay his debts, such part of Ms personal estate should be sold for that purpose as his wife could best spare.

A man so situate would naturally desire to make a competent provision for Ms wife during her life, and to bestow some present token of his regard upon those who weie nearest to him in blood, with the prospect of an accession to it upon the death of his wife. But if he thought it probable that Ms wife wras then ensient, the natural affection of a parent would prompt Mm to make a provision for his future offspring,* and, from afortune so small, would as naturally restrain him from making a deduction in favor of Ms collateral kindred. If this intention can be fairly collected from the will, it is our duty to give effect to it, though it may not be expressed in legal and technical words.

*31In the first clause of Ms will, the testator lends to his wife during her life, his plantation, furniture, stock, and three out of five of his slaves; and the second clause provides, that if she should be then pregnant with one or more children, such child or children shall be raised and cducat-ed by his wife, out of the income of the property left to her, as well as all other property he dies possessed of: if the child or children should marry or arrive at age in his wife’s lifetime, the one so marrying shall have an espial share of all his negroes and their increase, as well as all his other property, except the land left to his wife. In the event of the child or children dying before marriage or arrival at age, then the property devolves upon the wife as directed in the first clause. The third clause directs that all the property left to Ms wife, as well as all she should inherit from his estate, after her death shall be inherited by his child or children, or for want of such heirs, as hereafter mentioned. By the fourth clause, he gives the land left to his wife, to Ms niece, Sarah Williams, after the death of his wife : And the residue of what he had given to his wife, he directs to be equally divided between his brother’s two daughters. Then follow the fifth and sixth clauses, under which the complainants claim the slaves, Esther and Harry, and the silver watch. If we apply to the will the ordinary rules of construction, it is plain that the intent of the testator was to confine his bounty to Ms wife and children, if she should have any, to the exclusion of his brother and nieces. This was his primary intention; and it was only upon a state of circumstances which has not happened, that he meant to make any provision for the Plaintiffs. Every part of a will is to be considered in its construction, and no words ought to be rejected, if any meaning can be possibly put upon them. Every string should give its sound.* The child or children are to be raised and educated by his wife out of the income of the property left to her, as well as all the property he dies possessed of. The whole of Ms *32property must, therefore, have been retained for that pur-i)0se ’ which is inconsistent with the immediate bequest of any part of it to his nieces. The child marrying or arriv-™S’ aS’e ™ his wife’s life-time, shall have an equal share 0f all his negroes, as well as all his other property, except the land left to the wife. This must signify a child’s part of all his property, including that claimed by the complainants. But the third clause is strongly impressed with the intention, and is calculated to remove all doubt $ for by that he gives to his child or children all that he had given to his wife, or all that she should inherit from his estate. Now he had given her part, and directed her to retain the whole for the purpose of raising his child | or to use his own expression, “ all the property I die possessed of.” The property he had given to her, and that which she should inherit from his estate, (by wldch inaccurate expression, he meant all the rest which was to be retained by her) he gives to his child upon her death. Desirous to make his meaning still plainer, he concludes this clause with the words, “ or for want of such heirs as hereafter mentioned.” These words run through and govern every succeeding clause in the will, by which the same property is disposed of; none of which were intended to be effectual in the. event which has occurred, namely the birth of a posthumous child. The opposite construction creates an unaccountable repugnance between different parts of the will, and tends to defeat the only child of ti¡e testator of a considerable proportion of his little all; which his father so anxiouslyendea-vored to secure to him.

*

1, P. Wins. 286.-4 Bro. R. 441.

*

2 Burr, 770. 2 F. Wms. 282.