Tolar v. Tolar, 10 N.C. 74, 3 Hawks 74 (1824)

June 1824 · Supreme Court of North Carolina
10 N.C. 74, 3 Hawks 74

Nathaniel & Sally Tolar v. Maria & Harriet Tolar.

T I From Currituck. J

“ l give and bequeath all that I possess, in doors and out doors,” held, that these words in a will are sufficient to pass real estate.

This was a petition for partition of lands described in the petition, of which Matthias Tolar died seised, and which the petitioners alleged descended upon them and the Defendants, as tenants in common, as the heirs at law of Matthias Tolar. The cause came on to be heard at spring term, 1824, of Currituck Superior Court, before Badger Judge; when the following appeared to be the facts:

Matthias Tolar was seised in his life time, in fee-simple, of the lands mentioned in the petition, then of the value of $2000, and was possessed of a small personal estate; and being so seised and possessed, on the isth of April, 1812, duly made and published his last will and testament, executed so as to pass real estate in the following words:

“ This may certify that I Matthias Tolar, do give and “ bequeath unto my wife Sally Tolar, all that I possess, in- " doors and out doors, except she should get married, and if "she does, then to my two daughters Maria and Harriet " Tolar; one shilling to Nathaniel Tolar, and one shil-*75**Iing to Sally Tolar junr. This is my will and wish, after my debts are paid.”

Mathias Tolar died without having revoked or altered his will j which, after his death, was duly proved in Currituck County Court. The Petitioners are the children of Matthias Tolar by a former wife, and the Defendants were the children testator had by the wife named in his will, and these four are his only heirs at law. The last wife survived her husband, and was married again before this petition was filed : testator’s personal estate was exhausted in the payment of his debts.

The Petitioners contended, that the lands did not pass under the will, but descended to them and the Defendants, and prayed for a writ of partition; the Defendants claimed the lands under the will as devised to them, and moved to dismiss the petition.

The presiding Judge being of opinion that the lands did pass under the will to the Defendants, sustained their motion, and ordered the petition to he dismissed $ whereupon the Petitioners appealed.

Taylor, Chief-Justice.

The testator had a wife and four children; two of whom, by a former wife, lived separate from him, without his consent. The bulk of his property consisted of the tract of land on which he lived, and a very inconsiderable personal estate, which was exhausted in the payment of his debts. In his will, he manifests his displeasure towards his two elder children, by giving them a shilling each; influenced no doubt by the common, but erroneous notion, that it is necessary to give something to a child, in order, effectually, to disinherit him. After these bequests, it is quite improbable tiiat he meant to die intestate as to his real estate, so as to let these two children share with the others; and where the intent is so apparent, too much stress ought not to be laid on the strict signification of words. He could not but kpow, that big personal property was inadequate to the *76support of his wife during her widowhood, an<$ that a remainder of it to his younger children, would be illusive. The words “ what I may die possessed of, have been held sufficient to describe property, of whatever description—(8 Vesey, 606); and the words, “all I am worth,” are sufficient to pass real estate.-(1 Bro. G. C. 437.) The petition must be dismissed.