Cole v. Ensor

Mason, J., delivered the opinion of this court. The present pontroversy grows out of the construction of the following clause in the will of Mrs. Artridge Cole, to wit: “I give and devise unto my grandson, Salathiel Cole, my negro girl Beck, together with the rest and residue of my estate, consisting of household furniture, cattle, horses, farming utensils, all and singular, of whatever kind, named or intended to be named; likewise all the produce of the farm, and all the produce that shall be growing on the farm at the time qf my death.” At the time ef the death of the testatrix she was owner of Sten negro slaves, which were not particularly mentioned or referred to in the will. The whole estate of Artridge Cole was valued at $4104, and the ten slaves, above referred to, ponstitute $2105- of the said whole estate. It is contended pn the part of the appellant, the residuary legatee, that the negroes in question passed to him under the residuary clause in the will, already set out.

Oral testimony was then introduced by the appellee, to show that the testatrix did not jntend to embrace this particular property, (the ten slaves,) jn the residuary clause. In this aspect of the case two questions arise: the first is, can thp intention of the testatrix, to exclude these negroes from the operation of her will, be gathered from the terms of the will itself, and from the surrounding circumstances of the case? and secondly, if not, will it be competent to offer oral testimony to show that the real intention of the testatrix was to make no testamentary disposition of said slaves? An affirmative answer to the first proposition, will render a consideration of the second unnecessary. We have no hesitation in saying that the proper construction qf the clause of the will now before us, would exclude from its operation the negroes in controversy.

If the clause in question had terminated with the expression, “the rest and residue of my estate,” it might doubtless have passed all the property owned by the testatrix at the tirne of her death, and which had not been specifically de ⁴⁵³ vised. But