Holmes v. Mitchell, 4 N.C. 107, 1 Car. L. Rep. 107 (1813)

Jan. 1813 · Supreme Court of North Carolina

4 N.C. 107, 1 Car. L. Rep. 107

Holmes and Wife v. Mitchell.

EJECTMENT to recover a house and lot in the town of Wilmington. A case was made up by consent, in which the will of Arthur Mabson, on which the question arose, was set forth at length; but the material clauses were as follow:

“Item, I give unto my daughter, Mary Mabson, one house and “lot in Wilmington, adjoining the house formerly be "longing to Doctor Green, together with half of the alley “between my two houses, and also one sixth part of all my “slaves, cattle and hogs, to be put into her possession when “she may attain the age of twenty-one years, or day of "marriage, which ever may first happen; and that the house be “put into, repair, at the expence of the estate."

The will also contained several devises and bequests to his wife, and his children, Susannah, Arthur and William; after which follows this clause:

“Item, It is my will, that in case of any of my aforesaid “children, Mary, Susannah, Arthur and William, dying “without lawful issue, before the time they can get possession “of their respective legacies, the legacies before bequeathed “to such child so dying, shall be equally divided between “the survivor or survivors of them, the said Mary, "Susannah, Arthur and William.”

The testator died in 1777, leaving a widow and six children, Alice, Mary, Susannah, Arthur, Samuel and William, of whom Arthur was his heir at law. Arthur died intestate in 1793, leaving Mildred and Louisa, the plaintiffs, his heirs at law. Mary, the devisee in the will of Arthur, took possession of the premises upon the death of her father, and remained in possession until 1808, when she died without issue, having previously devised the premises to the defendant.

The case was argued, at the last term, ably and at length, by J. Williams and Gaston for the plaintiff, and A. Henderson and Jocelyn for the defendant.

For the Plaintiffs, the authorities principally relied upon were, Cowper 306, Coke. Litt. 111, a. 2 P. Williams, 745, Godolph. 271, Douglas 34; for the defendants, 1 Burrows, 268, 2 Foutblanque 58, 5 Term. Rep. 716, 1 Bos. & Pull. 558.

Hall, J.

delivered the opinion of the Court:

The first clause in the will, connected with this question, and by which the promises in question are given to Mary Mabson, certainly has only the effect to convey to her an estate for life. The testator has not even expressed an intention of giving away the whole of his estate—a circumstance which in many wills has been much relied upon. But what appears to be all-important in this will, is the clause subsequently inserted, in which he says, “That in “case of the death of any of my aforesaid children, Mary, “&c. without lawful issue, before the time they can get “possession of their respective legacies, the legacy "bequeathed to such child so dying, shall be equally divided “between the survivors or survivor of them, the said “Mary, &c.”

It has been argued, that the word legacy, relates only to personal property. No doubt it would be more correct to use it in that way, but most testators are unacquainted with that circumstance, and apply it indiscriminately to both real and personal property, and so I think the testator did in the case before us. The case in 1. Bur. 268, is so strong an authority in favor of the defendant, that I cannot better discharge my duty than refer to it, as settling the question. It certainly never could be the intention of the testator, that in case Mary died before she got possession of the property willed to her, that the personal property should be divided amongst the survivors, and that the real estate should either go to a residuary devisee, or to the heir at law, as property undisposed of.

I think judgment should be given for the defendant.