Returns in Partition From the Court of
Equity 1824-1837
J.W. (John Wesley) POU and Others
children of Wm POU, Jr
vs. Gavin POU & John POU
Executors of Wm POU, Sr
- In Equity Orangeburgh, January 1831.
The bill sets forth that Wm
POU, Sr departed this life leaving in
full force and effect his last will and testament
which he had executed on the 9 Jan 1809 - By that
Will he devised and bequeathed as follows:
"I give and bequeath to my beloved wife Ann
(Miller) POU, one third
part of all my other moveable property, also the
plantations and buildings whereon I now live,
with what wood and timber she may want to sue on
the same, for and during her natural life; and at
her decease; the plantations and buildings to be
equally divided between my daughters, Ann,
Mary & Elizabeth
(NOTE: these are 1/2 sisters of Wm, Jr)
; and the Negro Slaves and other moveable
property to be equally divided between all my
living children". At the time of the death
of the testator, his eldest son Wm POU,
Jr was living, But at the time of the
death of the widow (Ann) of the
testator (to whom the life estate was devised)
the said Wm POU, Jr had departed
this life leaving children who are the
Complainants (NOTE: Wm, Jr was
the only child of his father & 1st wife, Ann
Baxter) ---- The Complainants insist
that they are entitled by a sound construction of
the Will of Wm POU, Sr to a
child's share of the Slaves and property
bequeathed to the widow for
life, in right of their father
-- And they required a division of the said
property and an account of rents and profits. The
defendants demurred to the bill of complaint on
the ground "that the period of distribution
contemplated by the Testator was the day of the
Tenant for life" (Ann POU);
and as Complainants' father died
before said distribution the said Complainants
are entitled to no portion of the said Testator's
estate as remainder men. There is
but one question for the consideration of the
Court, which is whether the children of Wm
POU, Jr are entitled to a child's
share - in their father's right of
the third part of the Testator's Slaves and
moveable property bequeathed to the widow
for life .... The limitation is
that at the death of the widow and Tenant for
life, the Negro Slaves and other moveable
property previous given to her to be equally divided
between all his living children. If
the words living children be construed to mean
living at the death of the Testator, then the
Complainants will be entitled to come in with the
other children for a child's share.
- If they mean living at the death of the Tenant
for life, then they will not be entitled, because
their father Wm POU, Jr died
before her .... It is to be remarked that the
period of the death of the Tenant for life, is
fixed for the division - The Will does not say
that he gives to such the children as may be
living at the death of the Tenant for life -- But
that the division is then to be made among them.
In reading over the whole Will, it is obvious
that the Testator meant to provide equally for
his children. He gives his lands and slaves very
equally among them -- The two thirds of the
personal estate not given to the widow for life,
are bequeathed to all of his children to be
"equally divided" and if any of my said
"children should die without
another heir that its part belonging to such
child shall be equally divided among the rest of
the children" -- This is badly
worded but the meaning is obvious. His object was
to equalize among his children: That is the
leading intent; and I have no doubt that if we
give such construction to the words of the first
clause of the Will as will let in the
children of Wm POU, Jr to a
child's share. We shall give effect to his
intention, - and if we give a different
construction, we shall defeat them - This general
persuasion is not however sufficient. We must
draw our conclusions as to the interest from the
particular words of the voice itself. It may be
laid down as rule that where limitations are made
to take effect after the death of certain
persons, the death of the Testator is the period
to which reference is to be had unless the will
fixes explicitly a different period. - In the
case we are considering the division is to be
made at the death of the Tenant for life; and the
Testator seems there to have had nothing more in
his mind than to fix the time of the division,
not the vestings. -- If there had been any
preceding direct gift to the children, I should
not hesitate - But it is difficult to get over Col.
PRESTON'S argument, that as there was no
preceding or direct Gift of this third of the
personal estate to the children, their right is
by implication; except as coupled with the
division itself. - The right and time of division
seem to be bound up together and go together. I
am indeed so satisfied that the Testator had no
intention to cut off the children of his son Wm
POU, Jr, and put them on a worse footing
than the other children, when his Will
throughout works a decided intention, if it be
possible. The great object is to get at the
intention of the Testator; and the use of the
decided cases is to illustrate the principles
which must govern constructions intended to be at
the intention of the Testator; and the use of the
decided cases is to illustrate the principles
which must govern in constructions intended to
get at and apply the intentions.--
The cases however are very
various and difficult to reconcile, if not
contradictory -- In the case of MYERS vs.
MYERS learnedly argued and more learnedly
decided, reported in the 2nd McCord CHANCERY
cases P. 2147. It was held, that a devise to
grandchildren without any definite future period
fixed for distribution, vests only in such
grandchildren as were in age at the death of the
Testator. In that Judgment the decided cases are
ably examine. - But this decision does not touch
our case; for in that there is a defined future
period appointed by the Testator for the
partition; to wit - the death of the Tenant for
life; and in MYERS vs. MYERS no time is
fixed. In SWINITON and others vs. Mary LEGARE
and others 2. McCord 440. It was decided in a
case where a legacy was to A. for life, and after
her death, to be divided among the survivors of
her children, that none but those alive at the
death of the Tenant for life can take. This seems
really to decide the case arisen out of Mr
POU'S Will -- for the words to
be equally divided, at the death of the Tenant
for life between all my living children, - seems
to be exactly equivalent to the legacy to it; and
after her death to be divided among his
survivors. of her children; that is those who may
then be alive -- Judge NOLT who delivered the
Judgment of the Court in SWINTEN vs. LEGARE,
examined the authorities with great care, and
made a luminous exposition of them. That case
being well reported, there is no occasion to go
into any detailed consideration (page 71) of it.
The Judge considered the rule that were no
specific time was fixed for the division,
reference should be had to the state of things at
the death of the testator; as vesting - on
authority, rather than on decision; and he
concurred with Lord SHURLOW, that it was an
unnatural construction - And so Lord HARWICHE in HARVEY
vs. HAWKES 2.atk. 426, said that rule should
not be resorted to where any other reasonable
construction could be put upon the words. - Mr
SAUNDERS in his learned note to case of HEATH
vs HEATH 2 atk. 121-2 says the general rule
certainly is, that were the devise to the
children in general, and not limited to a
particular period, then it is confined to the
death of the Testator. - and quoted many cased to
that effect - But where such devise or gift, to
one for life, or where the distribution is
postponed to a future period, the children born
during the life or before are let in - See the
case cited . The case of DRAYTON vs DRAYTON
1 Eq. rep 324 comes nearest to the case we are
considering. For in that case, as in the one
before us, there was a devise to a Tenant for
life; and upon his death during his minority,
then to Testator's four sons, Wm Henry, Charles,
Glen and Thomas or the survivors of them. W.
Henry survived the Testator but died before John,
who also died in his minority, it was decided as
Wm Henry survived the Testator his heirs should
come in and share with his brothers, though he
died before the minor, the tenant for life ---
Judge NOLT considered this case as tuning on its
peculiar circumstances, and especially upon
limitation over being made to the four sons by
name. It must however be remarked that the
provisions of the voice in that case are distinct
as the different portions of the property given
to the son John. -- As to the part, the
limitation in case of John's death under, was to
the Testator's four surviving sons, W. Henry,
Charles, Glen and Thomas or the survivors of
them. - But the greater part of the property
devised to John was limited over on his death
under age to be divided equally among his
surviving brothers; without naming them set the
Judgement of the Court secured to the heirs of W.
Henry a share in all the property devised to
John, and limited over after his death to the
survivors - The truth is it is a most difficult
subject. The cases are at variance. The Courts
have vacillated between their desire to give
effect to the probable intention of the Testator,
untrammeled by technical rules and their respect
for legal decisions. My own opinion is formed
from a view of the whole Will - is that
the intent of the Testator Mr. Wm POU
was that all his children living at his death
should be entitled to come in equally; though the
different words seem to indicated a different
intent - - - - The decision however of the Court
of appeals in SWINTON vs LEGARE seems to
me conclusive, and I feel constrained reluctantly
to apply it to this case -- It is therefore
ordered and Decreed that the Will be
dismissed; but without costs ---- Henry W
DeSAUSSURE [most of page blank]
(page 72) In February 1831, Joseph
POU was Esquire, Commissioner in Equity
at Orangeburgh District, South Carolina. |
| Wm D
POU, Jr |
Final
Settlement - 1850
Lowndes Co, AL
Heirs:
- (widow)
- Nancy Pou,
(later married Joseph
H Morgan)
- (dau)
- Mary E (Pou), wife of Wm
N Sears
- (dau)
- Ann B (Pou),
wife of Gasper Golson
- (son)
- Robert L (Pou)
- (son)
- John W (Pou) &
wife, Rachel A (Golsan)-
- (son)
- Henry P (Pou) &
wife Drucilla M (Chapman)
|
Admins:
Robert L Pou
Note:
Wm D Pou, married Rutha SHILLING.
He gave the name of his widow as
"Nancy". Either Rutha also went by
Nancy or he had remarried.
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