Den ex dem. Felton v. Billups, 19 N.C. 308, 2 Dev. & Bat. 308 (1837)

June 1837 · Supreme Court of North Carolina

19 N.C. 308, 2 Dev. & Bat. 308

DEN ex dem. KEDAR FELTON et Ux. v. JOSEPH R. BILLUPS.

Where land was devised by a grandfather to a grandson who would, have succeeded to the grandfather’s land in case he had died intestate, it shall, upon the deVisee^s dying without issue, descend to his first cousin on the part of .his grandfather, -rather than to -a -half-brother, who is not of the blood of the devisor.

This was an action of ejectment, submitted to his Honor Judge Toomer, at Perquimons, on the last Circuit, 'in the form of a case agreed, presenting the following ■facts:—

Josiah Rogerson died seized of the premises in dispute, 'in the year 1806, having made his will, whereby he. ‘devised them as follows. “I lend to my grandson, Obadiah Rogerson, a tract of land, that I purchased of,” &c., (describing the premises in dispute), “ three negroes,” &c. “ Now, if the said Obadiah Rogerson should live to arrive at the age of manhood, and beget heirs of his body lawfully, then the above property is to him and his heirs forever; if not, I give and bequeath the above mentioned property unto my son, Jeremiah Rogerson, to him and his heirs forever.” The devisee Obadiah lived to attain manhood, and died without issue in the year 1836. Jeremiah Rogerson survived the testator, but died before Obadiah, leaving the feme lessor of the plaintiff, his only child. She is the grand-daughter of the testator Josiah, and the nearest relative of the devisee Obadiah, oh the side of his grandfather, the testator, being his first cousin; and Obadiah would have been an heir of his grandfather, had the latter died intestate. The defendant is the half-brother, 'éxparte materna, of the devisee Obadiah, but is not of the blood of the testator Josiah.

His Honor gave judgment for the lessors of the plaintiff, '•thinking that Obadiah took only an estate for life, and 'that the limitation over to Jeremiah was good as an executory devise; and the defendant appealed.

Kinney, for the defendant.

Devereux, contra.

Daniel, Judge.

Josiah Rogerson was the owner in fee ■of the land in dispute. He made his will, and devised the lands as set forth in the case. It is admitted by the parties, that the lessor of the plaintiff is heir at law both to the testator Josiah, and also to the ulterior devisee, Jeremiah Rogerson, in case he could in law, take the land as executory devisee. But if Obadiah Rogerson, (who would have been heir at law to the testator in case no will had been made) took the entire and absolute fee by the aforesaid devise, then the lessor of the plaintiff would be his heir on the part of the father, the testator, being first cousin. And the defendant is the brother of the half blood, of Obadiah Rogerson ex parte materna. Let us suppose the case to rest upon this point: then the act of assembly, passed in the year 1808 enacts, “ That on a failure of lineal descendants, and when the inheritance has been transmitted by descent from an ancestor, or has been devised by gift, devise, or settlement, from an ancestor, to whom the person thus advanced would in the event of such ancestor’s death, have been the heir, or one of the heirs, the inheritance shall descend to the next collateral relation of the person last seized, who were of the blood of such ancestor.” If Obadiah Rogerson obtained an absolute fee in the land, by the devise in his father’s will, then, as he would have been heir on the part of the father to this land, in case no will had been made by the father, and he (Obadiah) dying without lineal descendants, the inheritance shall descend from him, not as from an ordinary purchaser, but it shall descend to the next collateral relation of the person last seized, (Obadiah) who were of the blood of the ancestor Josiah. The lessor of the plaintiff is that person. She is the next collateral relation of the person last seized, of the blood of the devising ancestor; and therefore, is entitled to the land. The defendant, is not of the blood of Josiah Rogerson, and has no title. Let this case be viewed in any of the ways presented, the plaintiff still is entitled to recover.

PeR CuRiam. Judgment affirmed.