
    BENJAMIN T. SIMMONS & AL. vs. JACOB GOODING & AL. EX’RS, &c.
    Where a testator disposed of his land, slaves and perishable estate, as dis„ tinct funds, and directed, among nther things, that the slaves should be equally divided among his children, and that his daughter E. S. should have an equal share of his slaves “and, as I have given my said daughter E. S, no part of my lands, in lieu thereof I give unto the said E. S., in addition to her share, of slaves, fifteen hundred dollars worth ot slaves,” and then directed his perishable estate, after payment of his debts, to be equally divided among his wife and his children. Held, that the legacy of “fifteen hundred dollars worth of slaves” to E. S, was to be taken out of his slave estate-
    A testator devised certain lauds and personal property to his daughter M. S., “and on the marriage of my said daughter, said property to be held by my said daughter and her husband during their joint lives and the life of the survivor, and, at the decease of the said M. S and her said husband, to bo equally divided between the children of my said daughter, who may survive their said parents and be living at their deqlh,” 4'c. M. S. married O. and died in the lifetime of the testator, having no children, and iier husband survived the testator. Held, that O. took nothing, because by the death of M. S the legacy and devise failed, and both the subject aud the description of the person failed, there being no distinct substantive devise or legacy to Q.
    A testator left land and personal property to his daughter M. S. and if she died, without children surviving her, “then I give paid land to my own heirs at law and said slaves and their increase to my next of kill.” The-said M. S. died in the lifetime of the testator. The children of another daughter, who died also in the lifetime of the father are entitled to the share which thb mother would have had in the land so devised, if she had lived, but not to any part of the personal estate, “next of kin” meaning “nearest of kin’,’ without some explanatory words in the will.
    Cause removed from the Court of Equity of Jones County, at the Spring Term, 1847.
    This was a bill filed by the widow and two of the children of Lemuel H. Simmons, deceased, against the executors of the last will and testament of the said Lemuel, and against three others, defendants, who claimed to be entitled as legatees under the said will, praying an account of the said estate in the hands of the said executors, and that they may be paid their respective shares of the said estate. The facts were admitted on both sides and the only questions in dispute were those arising upon the construction of the will.
    The following is a copy of the will as admitted by the pleadings and proved by an exhibit.
    In the name of God, Amen.
    I, Lemuel II. Simmons, of the County of Jones, and State of North Carolina, being of sound and disposing mind and memory, do make, publish, and declare my last will and testament, in manner and form iollowing :
    Imprimis — I give unto my beloved wife, Maria Simmons, two horses, lour cows, all my household and kitchen furniture, one year’s provision for herself and family, and# after my debts arc paid, an equal share with my children, ¡oi my personal estate, to hold the same to her, and her executors, administrators, and assigns.
    Item. I give unto my said wife, Maria Simmons, during her natural life, the one third part oí'my cleared and wood land, including the dwelling and other improvements.
    Item. I give to my son-in law, William P. Ward, the pegro slaves now in his possession, heretofore loaned him by me. I desire that said slaves may be fairly valued, and as many more slaves may be added as to make this share equal to the shares of my other children, (except Emily Simmons.) I also give and devise unto my said son-in-law my lands purchased of fohn Marrite, to have and to hold said slaves and the said lands to the said William P. Ward, my said son-in law, until his children, (the children of said Wei, P. Ward and my daughter Elizabeth, his wife, lately deceased,) respectively attain the age of twenty-one years or marry, At the arrival of each of my said grand children (the children of my said daughter Elizabeth,) to the twenty first year of his or her age, or at the marriage of each of my said grand children, it is my will, and 1 do hereby devise and direct that there shall be allotted and setoff to said grand children, respectively as they marry or arrive at age, one. share and dividend of said slaves and their increase, and said lands, devised to their father in this clause, in proportion to the number of my said grand-children, (the issue of my said deceased daughter, Elizabeth Ward,) who may be then living, to be held by said grand-children, respectively, who may receive said share at their arrival at age or day of marriage, in absolute property , the residue of said slaves and lands^ to remain in their father’s possession, until the whole shall be allotted to said grand children on their marriage or arrival at age ; and if any one or more of my said grandchildren should die under age and unmarried, my will is that said share or shares, which would have been allotted to said child or children of said lands and slaves on their marriage or arrival at the age of twenty one years under this clause of my will, shall- become the property in absolute estate of such surviving brother or sister of said deceased (the children -of said daughter Elizabeth,) as may be then under the age of twenty one years or unmarried, but should all my said grand children die and leave no lineal descendant or brother or sister or their issue living at their decease, then I give said lands and slaves to my own heirs-at-law or next of kin. The lands to be held in fee simple, and the slaves by my next of kin in absolute property. But, moreover, I do expressly authorise each and every of my said grand-children, devisees as aforesaid, on arriving at the age of twenty-one years, whether having a lineal descendant or not, by will or deed to appoint, give, devise, or sell, absolutely or otherwise, any part or parts, or the whole of (he devised premises, whereof he or she, at the time of the execution of said will or deed, may be seized.
    
      Item. I give unto my daughter, Mary Ann Simmons, all my right, interest, and share in the Buckner Hatch Mills, held in common with John Oliver, two beds, and furniture, and an equal share with my children of my slaves and a share of my perishable estate, after my debts are paid, and on the marriage of my said daughter Mary Ann Simmons, said property, mentioned in this clause of my will, to he held by my said daughter and her husband during their joint lives and the life of the survivor, and at the decease of the said Mary Ann and her said husband, to be equally divided between the children of my said daughter, who may survive their said parents and be living at their death ; but should my said daughter Mary Ann and her husband die and leave no child or children of the said Mary Ann, living at the death of said Mary Ann and her husband, then I give said lands to my own heirs at Jaw. and said slaves and their increase to my next of kin, but I do, moreover, authorise and empower each and every of my said grand-children devisees as aforesaid, at the age of twenty-one years, whether having a lineal descendant or not, by will or deed to appoint, give, devise or sell absolutely or otherwise, any part or parts, or the whole of the devised premises, whereof he or she, at the time of executing said will or deed, may be seized.
    Item. I give to my daughter, Emily Simmons, an equal share in my slaves with my other children, and as I have given the said Emily no part of my lands, in lieu thereof, I give unto said Emily Simmons, in addition to her share of slaves, fifteen hundred dollars worth of slaves; and should my said daughter Emily marry, the said slaves and their increase to be hold by said Emily and her husband, and the child or children of said Emily who may survive their parents, upon the same terms, and subject to the same conditions and limitations, mentioned in the devise to her sister, Mary Ann Simmons.
    
      Item. I give and devise unto my son, Benjamin Franklin Simmons, all my lands, not already given away and devised in this will, also an equal share of my slaves with my other children, and a share of perishable estate, after my debts are paid ; and should my said son marry, the said lands and other property to be held by my said soil Benjamin and his wife and the child or children of said Benjamin, surviving their parents, upon the same terms and subject to the same uses, conditions, and limitations, mentioned in the devise to his sister, Mary Ann Simmons*
    Item. That I may not be misunderstood, it is my will, that, after my debts are paid, the balance of my perisha* ble estate shall be equally divided between my wife and all my children, (except my daughter Elizabeth Ward.)
    Item. I give to my sister Mary, wife of George Hatch, one hundred dollars, and to Lemuel S. Hatch, son of said Mary Hatch, I give one hundred dollars. Lastly I con* stitute and appoint Jacob Gooding, Amos L. Simmons, and William P. Ward, my executors. In testimony where* of, I hereunto set my hand and seal, this 14th day of June, A. D., 1844.
    LEMUEL H. SIMMONS, [seal.]
    Signed, sealed and published
    by Testator in our presence,
    Nathan Foscue,
    John Stanly.
    It was also admitted in the pleadings, that Richard Old* field, one of the defendants, before the death of the said testator and after the making of the said will, intermarried with Mary Ann Simmons, who was a daughter of the testator and one of the legatees and devisees mentioned in the said'will, and that she died in the lifetime of the said testator, leaving no children, but leaving the said Richard, her husband, surviving her, who also survived the said testator, and that the defendants, Maria and William, were the children of a daughter of the testator, who died in his lifetime.
    The questions upon which the respective parties differed in the construction of the will, are stated in the opinion of this Court.
    
      Iredell, for the plaintiffs.
    J. H. Bryan and Mordecai, for the defendants.
   Pearson, J.

Three questions are presented by the bill and answer upon the construction of the will of Lemuel H. Simmons.

Obscurity is as often caused by the use of too many words, as by not using words enough. This will is an instance of the bad effect of using too many.

The first question is, whether the fifteen hundred dollars worth of slaves, given to Emily Simmons, in lieu of land, are to be taken out of the slaves, belonging to the testator, at his death, or'are to be purchased by the executors ; whereby the purishable estate, (as it is termed,) which, after the payment of debts, is to be equally divided between the wife and all the children, except Elizabeth, who was dead, will be diminished to that amount.

From the whole will, the testator seems to have treated his estate, as divided into three funds; land, slaves, and perishable estate. The latter he directs to be divided equally between his wife and children, after the payment of his debts. This is the only charge, which he has expressly put upon the “perishable estate,” and in the absence of any direction, that it should also be burthened with the “fifteen hundered dollars -worth of slaves,” we can see no reason for doing so.

The slave fund is to be divided between the three children, who were living, and the children and husband of a deceased child. To the share of Emily is to be added fifteen hundred dollars worth of slaves, in lieu of land. There is no intimation that this share is to be made up out of the perishable estate fund, for the sake of increasing the slave fund. In giving a share of the slave fund to his son-in law Ward and his children, he directs the fund to be increased by the value of shares before put into his possession, and as many more slaves to be added to what Ward already had, as will make his share equal to the shares of the other children, except the share of Emily. The slaves, to be added in this instance, certainly come from the slave fund, and from the fund of the “perishable estate,” and yet, there is no better reason to be assigned for taking this addition from the slave fund, than for taking Emily’s addition of $1500 worth from that fund. The words “except Emily Simmons,” in the connection in which they are used, are significant to show, that her share was to be taken entirely from the ‘slave fund.’

2nd. Mary Ann. Simmons married the defendant Oldfield, after the will was made, and died in the life time oflhe testator, without children. The second question is, whether Oldfield is entitled to a life estate in the legacy that was intended for her. We think, that he is not. The' legacy, intended for her, lapsed by her death. Oldfield takes nothing, because both the subject'and the description of the person fail. There is no distinct substantive legacy given to the husband of Mary Ann. The legacy, given to her should she marry, is to be held by her and her husband, during their joint lives and the life of the survivor. She got no legacy, and, therefore, the subject of the legacy, intended for the husband, failed. When the principal falls, the incident falls with it. The description of persons also fails. Oldfield was the husbapd of Mary Ann, but at the death of the testator, when the will; takes effect, he was not her husband, and did not answer the description ; nor did he answer the description, when the will was made. It may be added, the reason for giving him any thing had ceased.

3rd. Mary Ann having died in the life time of the testator, without children, the third question is, do the “heirs” and “next of kin” of the testator take by purchase, as “devisees” and “legatees'?” Or do the slaves and land, intended for Mary Ann, fall back into the estate, as undisposed of property and go to the persons, who would be entitled, as in case of intestacy ? In the latter case, the widow would be entitled to a distributive share of the slaves, under the statute of distributions. In the former case, the widow takes nothing, and it would be a question, whether the children of Elizabeth Ward take any part.

We think, the “heirs” and “next of kin” of the testator take by purchase, as “devisees” and legatees.” It is settled law, that where a particular estate is given by will, with a remainder over, whether vested or contingent, the -remainder takes effect, notwithstanding the particular estate fails by the death of the person, for whom it was intended, before the death of the testator. The law is the same, in respect to executory devises and bequests, unless there be an intention expressed, that the limitations over should depend upon the vesting of the preceding estates, as a condition precedent; which is not usually the case, for most generally the limitations over are intended to take effect, whenever the preceding estates are out of the way, without reference to the manner in which they get out of the way. 2 William’s Ex’rs, 764, and the cases there cited.

In this case there is an estate for life to .Mary Ann, subject to be enlarged, so as to let in a life estate for her hushand, remainder to her children, if she has any ; if not, remainder, as to the land, to the heirs of the' testator, and as to the slaves, to the next of kin of the testator; These limitatations over, clearly, do not depend upon the vesting of the preceding estate in the tenant for life, asa condition precedent; a'nd, therefore, cannot be affected by the fact, that the life estate lapsed.

As to the land, the word “heirs” is a term of the law, having a known and fixed meaning, and there is no difficulty in saying, that the children of Mrs. Ward are entitled to represent her, and take the share of the land’, to which she would have been entittled, if alive.

As to the slaves, there is 'some more difficulty; for, although the words “next of kin,” like the word “heirs,” has a fixed meaning, yet it does not seem to be as well known. Next of kin means nearest of kin. This meaning is fixed, by the cases, unless there be something to introduce the idea of representation, by which one, who is not next, or as near, or equal in degree, may bring himself up to the same degree, by taking the place of one, who, if living, would be as near. Jones v. Olive, 3 Ired. Eq. 369. We have looked at this case with an inclination to take in the children of Mrs. Ward, but are unable to find any ground, upon which to stand, in their favor.

If to the words “next of kin,” these words had been added, “as in case of intestacy,” or “as by the statute of distributions,” or if the language of that statute had been adopted, “to the next of kin in equal degree, or to those who legally represent them,” we might have included the grand-children ; but upon the words “next of kin,” simply, they cannot be included. Children are in the first degree ; grand-children are in the second degree. We have no right to bring grand children as near as children, unless the testator had made known to- us by his will, that such was his intention.

If the land and slaves had been disposed of together, so as to show an intent, that they should go to the same persons, then, as the wrnrd “heirs” embraces the idea of representation, perhaps, the grand children might have been allowed to take by representation, in reference to both funds. But in this will, special care is taken to separate the two funds, and to give the land to the heirs and the slaves to the next of kin : Indicating thereby, if there be any meaning in the separation, an intention that the funds should go to different persons ; and as the word “heirs” takes in the grand-children as to the land fund, the words “next of kin” cannot take them in as to the slave fund also, without giving the land fund and the slave fund to the same persons ; thereby making it idle for the testator to have been at such pains to keep the two funds separate, and give one to the heirs, and the other to the next of kin.

There must be a decree, declaring : 1st. That the fifteen hundred dollars worth of slaves, given to Emily Simmons, are to be taken out of the slaves, belonging to the testator at his death, before a division is made : 2nd. That Richard Oldfield is not entitled to a life estate in the legacy, intended for Mary Ann Simmons. 3rd. That the children of Elizabeth Ward are not entitled to any part of the slaves, that would have fallen to her, had she lived. The costs must be paid out of the estate in the hands of the executors..

!Pjer. Curiam.

Declared accordingly.  