{ "id": 8694113, "name": "W. C. JONES, wife and others v. H. W. ROBINSON and others, executors of David Settlemoir", "name_abbreviation": "Jones v. Robinson", "decision_date": "1878-01", "docket_number": "", "first_page": "396", "last_page": "401", "citations": [ { "type": "official", "cite": "78 N.C. 396" } ], "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": "1 Dev. & Bat. 334", "category": "reporters:state", "reporter": "Dev. & Bat.", "case_ids": [ 8691365 ], "opinion_index": -1, "case_paths": [ "/nc/18/0334-01" ] }, { "cite": "1 Jones Eq. 149", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8685285 ], "opinion_index": -1, "case_paths": [ "/nc/54/0149-01" ] }, { "cite": "5 Jones Eq. 301", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8692357 ], "opinion_index": -1, "case_paths": [ "/nc/58/0301-01" ] }, { "cite": "7 Jones 473", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2088549 ], "opinion_index": -1, "case_paths": [ "/nc/52/0473-01" ] }, { "cite": "72 N. C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698687 ], "opinion_index": -1, "case_paths": [ "/nc/72/0570-01" ] }, { "cite": "2 Dev. & Bat. Eq. 20", "category": "reporters:state", "reporter": "Dev. & Bat. Eq.", "case_ids": [ 8683656 ], "opinion_index": -1, "case_paths": [ "/nc/22/0020-01" ] }, { "cite": "74 N. C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683269 ], "opinion_index": -1, "case_paths": [ "/nc/74/0612-01" ] }, { "cite": "2 Jones Eq. 420", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8694152 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/55/0420-01" ] }, { "cite": "4 Dev. 488", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276908 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/15/0488-01" ] }, { "cite": "4 Dev. 370", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276652 ], "opinion_index": -1, "case_paths": [ "/nc/15/0370-01" ] }, { "cite": "75 N. C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698266 ], "opinion_index": -1, "case_paths": [ "/nc/75/0497-01" ] }, { "cite": "67 N. C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092614 ], "opinion_index": -1, "case_paths": [ "/nc/67/0040-01" ] }, { "cite": "69 N. C. 346", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2085467 ], "opinion_index": 0, "case_paths": [ "/nc/69/0346-01" ] }, { "cite": "72 N. C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698687 ], "opinion_index": 0, "case_paths": [ "/nc/72/0570-01" ] }, { "cite": "2 Jones Eq. 420", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 8694152 ], "opinion_index": 0, "case_paths": [ "/nc/55/0420-01" ] }, { "cite": "4 Dev. 488", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276908 ], "opinion_index": 0, "case_paths": [ "/nc/15/0488-01" ] }, { "cite": "4 Dev. 370", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276652 ], "opinion_index": 0, "case_paths": [ "/nc/15/0370-01" ] }, { "cite": "75 N. C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698266 ], "opinion_index": 0, "case_paths": [ "/nc/75/0497-01" ] }, { "cite": "67 N. C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092614 ], "opinion_index": 0, "case_paths": [ "/nc/67/0040-01" ] } ], "analysis": { "cardinality": 574, "char_count": 11080, "ocr_confidence": 0.445, "pagerank": { "raw": 1.4614541207363146e-07, "percentile": 0.6574257804219473 }, "sha256": "508d0e53df3106bfefca36aa40e661581d7e1724a973e91f910d1c82af195d6a", "simhash": "1:8c86f7a3917cd48e", "word_count": 1982 }, "last_updated": "2023-07-14T19:04:18.240606+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. C. JONES, wife and others v. H. W. ROBINSON and others, executors of David Settlemoir." ], "opinions": [ { "text": "Bynum, J.\nA construction is asked of the following clause \u25a0of the will, viz; \u201c The plantatien that my son George S. Sottlemoir now lives on lying in Burke County three hundred and fifty acres to be sold after he gets possession of the plantation that I now live on &c.\u201d The ambiguity of meaning arises out of the total lack of punctuation in the sentence. A careful consideration of this clause, and of the \u2022whole will, does not fully satisfy us of the intention of the testator. Did he mean that only 350 acres, out of,the plantation, should be sold, or did he mean that the plantation, estimated to contain 350 acres, should be sold ? Both parties agree that the whole plantation, having been worked for a number of years as one farm, consisted of two adjoining tracts, one of 400 acres, and the other of 70 acres.\nAfter much thought, we have concluded that the meaning of the testator was, that the entire plantation should be sold, and that the words \u201c three hundred and fifty acres\u201d are only an accumulative description of the property, and not of the amount of land intended to be sold; as much as to say, \u201c I will that my plantation in Burke County, that is, three hundred and fifty acres, be sold.\u201d Considering the designation of the number of acres as only an alternative \u25a0description of the plantation, the rule of construction is well settled, that where there is in the first place an unambiguous and certain description of the thing, and afterwards, another description which fails in certainty, the latter shall be rejected, The authorities cited by the plaintiffs\u2019 counsel, as well as good sense, establish this proposition. That the testator meant that the whole plantation should be sold, we Ihink sufficiently appears from the following reasons :\u2014\n1. The case agreed admits that the two tracts, one of 400 acres and the other of 70 acres, in all 470 acres, compose ' the \u201cplantation\u201d upon which the son, George, resided 'The testator proceeds in the same sentence thus: \u201cAn' = the balance of the land joining George\u2019s plantation whei'e he now lives in Burke County to be equally divided, &c. \u2019 The testator in fact owned another tract of land joining George\u2019s plantation. Now if 350 acres are carved out r\u2018\u2018 \u2022.the \u201cplantation\u201d which consists of 470, there would b left remaining, 120 of the plantation, undisposed of; fo\u00a3 the words of the will, \u201cthe balance of my land joining George\u2019s plantation,\u201d do not embrace the plantation itself or any part of it, but do fit and embrace the other land,! outside of, but joining the plantation. The contention of\u00a1 the defendants cannot prevail, unless they can show byj some established rule of construction, that \u201cthe balance of: my land joining George\u2019s plantation \u201d mean not only thcj adjoining land, but a part of the plantation itself. J3.it i whore the words of a -will clearly embrace a particular thing, and do not embrace another, Courts are not at liberty to change or enlarge the language of the testator, so as to apply to and embrace the other thing; and especially is this so, where neither the context of the will nor the general purpose of the testator, requires such a construction. Nothing else appearing, the ordinary presumption is, that a testator will make an equal distribution of his property among his children. By giving effect to the will as wc construe it, we see little or no disparity between the devises and bequests to them; for while the daughters get more land than two of their brothers, they get fewer slaves; and the other brother, George, apparently gets a larger share than either of the others. So the construction contended for by the defendants derives no support from the other provisions of the will.\n2. If 350 acres of land are to be carved out of the plantation aud sold, what part is it and how is it to be ascer-tkined? The will does not designate the part, or make any provision for ascertaining and setting it apart. The case ife unlike Harvey v. Harvey, 72 N. C. 570. There, the testa-\u00cdor devised to his son A 250 acres of land including the raildings which he occupied, and to his son B 250 acres including the buildings where he resided, and the residue to be sold, and the proceeds to be divided among his other \u00a1children. The Court, after some, hesitation, and that they \u00a1might not declare the devises void for uncertainty, held \u00a1that the children were tenants in common, and that it was \u2018competent for the Court, by intervention of commissioners, to render that certain which was before uncertain, and time effectuate the intention of the testator. There, the devises were certain to the extent that they included the buildings where each son resided, and thus constituting initial points from which the devises could be ascertained and made certain. But in our case there is no starting point from which the S50 acres can be laid off and set apart. It is true that the executors did carve out of the plantation and sell 350 acres of the land, but it was by a law unto themselves, and as they pleased. None of the parties interested could interpose and say that it should be taken from this or that part-of the tract, because all were equally in the dark, where the will was silent.\nWe do not say that the construction contended for by the defendants would make the devise void for the uncertainty, though the cases of Blakeley v. Patrick, 67 N. C. 40, Grier v. Rhyne, 69 N. C. 346, and Pemberton v. McRae, 75 N. C. 497, are strong authorities to that effect; but in endeavoring to ascertain the intention of the testator, which certainly was that his will should take effect, we are not to suppose that he would make a disposition of any part of his properly, which would subject it to the risk of being declared void, as in Proctor v. Pool, 4 Dev. 370. On the contrary, we fe l bound to give the same construction of the will in this cast, as was given in Dodson v. Green, 4 Dev. 488; Stowe v. Davis, 10 Ire. 431; Woods v. Woods, 2 Jones Eq. 420; Bradshaw v. Ellis, 2 Dev. and Bat. Eq. 20. Woods v. Woods, was a case much, like tbe present, and we think is decisive of it. 'There, the testator devised \u201cthe tract of land whereupon I now live and reside, containing two hundred and twenty-five acres more or less.\u201d The tract was made up of an original tract, and several others afterwards added, and which had \u25a0been used by the testator as one plantation. It really contained between four and five hundred acres, yet it was held that all was conveyed by the terms of the devise.\nOur opinion upon the case agreed is that it was the intention of the testator that the whole plantation, composed of the 400 acre tract and the 70 acre tract, should be sold, \u00e1,nd the proceeds divided between Sarah Mull and Agnes Bettlemoir.\nThere is error.\nPer Curiam. Judgment reversed.", "type": "majority", "author": "Bynum, J." } ], "attorneys": [ "Messrs. R. F. Armfleld and G. N. Folk, for plaintiffs :", "Messrs. W. IF. Bailey and M. L. MoGorkle, for defendants" ], "corrections": "", "head_matter": "W. C. JONES, wife and others v. H. W. ROBINSON and others, executors of David Settlemoir.\nWill \u2014 Construction of \u2014 Conflicting Description of Land.\n1. A testator by his will'devised that \u201c the plantation that my son G now lives on lying in Burke County three hundred and fifty acres to be sold * * * and the balance of the said land joining G\u2019s plantation where he now lives in Burke County to be equally divided with my three sons J, H and Gthe testator had three adjoining tracts of land in Burke County containing respectively 400, 70 and 300 acres, the first two of which had been cultivated by G for many years ; Held, that under the will the entire plantation, containing the first two tracts (470 acres) should be sold; the words \u201cthree hundred and fifty acres \u201d, being'only an accumulative description of the property and not of the amount of land intended to be sold.\n3. It is a well settled rule of construction that \u00a1where fthere is in the first place an unambiguous and certain description of the thing, and afterwards another description which fails in certainty, the latter must be rejected.\n.(12'army v. Harvey, 72 N. 0. 570 ; Blaleeley v. Patri\u00f3le, 67 N. C. 40 ; Grier v. Rhyne, 69 N. O. 346 ; Pemberton v. MeRae, 75 N. C. 497-; Proctor v. Pool, 4 Dev. 370 ; Dodson v. Green, 4 Dev. 488 ; Stowe v. Davis, 10 Ire. 431; Woods v. Woods, 2 Jones Eq. 420 ; Bradshaw v. Ellis, 2 Djv. & Bat. Eq. 20, cited, distinguished and approved.)\nCivil AotioN for the Construction of a \"Will heard at Fall \"Term, 1877, of Caldwell Superior Court, before Cloud, J.\nDavid Settlemoir died in April, 1840, leaving a last will .and testament, as follows ; * * * \u201c I will my plantation that I now live on with all the adjoining lands to my son George S. Settlemoir after his mother\u2019s death the plantation that my son George now lives on lying in Burke County three hundred and fifty acres to be sold after he gets possession of the plantation I now live on and the money equally divided between my two daughters Sarah Mull and Agnes .Settlemoir and the balance of the said land joining George\u2019s plantation where he now lives in Burke County to be equally \u2022divided with my three sons, Jacob, Henry and George.\u201d\nIn was in evidence that the testator bad three tracts of land in Burke, one of 400 acres on which George lived, oner of 70 acres, and another of 200 acres (all joining) as evidenced by the deeds for the same, but all the tracts contained a greater number of acres than were called for in the deeds. The two first tracts had been cultivated by the son, George, over ten years previous to his father\u2019s death; and after the death of the testator\u2019s widow, the defendant executors ran oif 350 acres of the two first tracts, embracing all the cultivated land in each so as to sell to-the best advantage, and sold the same in 1862, and paid the proceeds thereof to Sarah Mull and the assignee of Agnes Eettlemoir.\nThe question submitted: \u201c \"Was it the intention ,of the testator to devise, under the above clause of his will, that the executors should sell 350 acres, out of the 400 acre and 70 acre tracts, or, to sell all the lands contained in these tracts and divide the proceeds of sale between said Sarah and Agnes ?\u201d\nHis Honor held that it was the duty of the executors to sell only 350 acres of the tracts mentioned, and gave judgment accordingly, from which the plaintiffs appealed.\nMessrs. R. F. Armfleld and G. N. Folk, for plaintiffs :\nThe words \u201c the plantation that my son now lives pn in Burke County\u201d include both the 400 and 70 acre tracts, the words- \u201c three hundred and fifty\u201d being words of description only. Teague v. Teague, 74 N. C. 612 ; Stowe v. Mavis, 10 Ire. 431 Bradshaxo v. Milis, 2 Dev. & Bat. Eq. 20; Dodson v. Green, 4 Dev. 488; Woods v. Woods, 2 Jones Eq. 420 ; Touchstone,. Title, Grant, L. L. Ed. 55 ; Metcalf on Contracts, 294.\nMessrs. W. IF. Bailey and M. L. MoGorkle, for defendants\nWords may be supplied or abstracted in order to ascertain the meaning of a will, or the intention of the testator.. Tayloe v. Johnson,B3 N. C. 381; 2 Car. Law Repository 266; Harvey v. Harvey, 72 N. C. 570; Jones v. Norfleet, 7 Jones 473 ; Rogers v. Brickhouse, 5 Jones Eq. 301 ; Bewv. Barnes, 1 Jones Eq. 149; Black v. Rag, 1 Dev. & Bat. 334; McLen-non v. Chisholm, 66 N. O. 100." }, "file_name": "0396-01", "first_page_order": 412, "last_page_order": 417 }