Gillespie v. Foy, 40 N.C. 280, 5 Ired. Eq. 280 (1848)

Dec. 1848 · Supreme Court of North Carolina

40 N.C. 280, 5 Ired. Eq. 280

DANIEL A. GILLESPIE & WIFE vs. JOHN FOY & AL.

A. purchased a tract of land iu feo, and died intestate, leaving two infant children, one of whom died intestato and without issue leaving her brother B. her heir at law. B. afterwards died intestate, without issue, mother or brother or sister. In his lifetime his guardian sold the land under an order of the County Court. B. left a paternal grand-father and maternal grandmother, and also one paternal aunt, and several maternal aunts, the chi!, dren of the grand-mother by a second marriage. Held, that the land would Have gone to the paternal aunt, if it had not been sold, and the proceeds of the sale, under our Act of Assembly, must go in the sanie way.

As to the personal estate of B, Held, that the grandfather or grandmother takes to the exclusion of the Aunt.

The grand-fathers and grand-mothers, as to the personal estate, take equally.

The case of Wilkersonv. Brackett, 2 Ire. S15, cited and approved.

Cause removed from the Court of Equity of Rockingham County, at the Fall Term 1848.

George Webster purchased a tract of land in fee, and died intestate in September, 1846, leaving two infant children, Mary E. Webster and John F. Webster, to whom the land descended from him. Afterwards Mary E. died, and her share of the land descended to her brother. On the petition of John Foy, the guardian and maternal grandfather of John F. Webster, the land was sold by a decree of the Court of Equity and the proceeds came into the hands of the guardian. John F. Webster was also entitled to a considerable personal estate ; and he died intestate in January 1848, without issue, mother, brother, or sister. Administration of his estate was taken by John Foy, the grandfather. His nearest relations at his death were his grandfather, just mentioned, and his paternal and maternal grandmothers, and the plaintiff, Gillespie, who is his paternal aunt, and was the only child of her parents except the said George, and also several uncles and aunts, the children of the said Foy and wife, and of the paternal grandmother by a second marriage.

The bill is filed by Gillespie against the grandfather and the two grandmothers, and it prays that she may be declared to be entitled to the money which arose from the sale of the land, and also to the whole or a part of the intestate’s personal estate.

No counsel for the plaintiffs.

Morehead, for the defendants.

Ruffin, C. J.

As the land descended to the propositus from bis father and from his sister, who derived her share by descent from the father, it would, if not sold, have descended from John F. Webster to the plaintiff, under the 4th canon of descents, as the only sister of his father and the nearest relation of the propositus ex parte paterna, except the grandmother, who is not within the' proviso to the 6th rule. Wilkerson v. Brackett, 2 Ire. 315. Then, by the Act of 1827, Rev. St. Ch. 55, Sec. 27, the money, into which the land was converted, goes, as the land itself would, had it not been sold ; for the owner of it, the propositus, being an infant at his death, could not male® a valid disposition of it as money. It therefore belong® to Mrs. Gillespie and her husband, the plaintiffs, as land, and it must be invested and secured as such, unless they dispose of the fund in a legal manner, as if it were land.

The questions made as to the personal estate have been long settled. The grandfather or grandmother, being one degree nearer than an uncle or aunt, takes to the exclusion of the latter. Blackborough v. Davis, 1 Wms. Pr. 40. Woodruff v. Wickworth, Pr. in Chan. 527. Indeed the grand-parents are in equal degree with brothers and sisters, and that is said to be the only exception to the rule, that relations in equal degree take equally; for brothers and sisters exclude the grand-parents. For that exception Mr. Christian thinks no good reason can be given. Bl. Com. 516, note. But it seems evidently to arise by implication from the provision of the St. 1, Jac. S, Ch. 17, Sec. 7, which, when the father is dead, makes an equal distribution between the brothers and sisters of the in* testate ar.d the mother ; which by necessary construction excludes the grandfather or grandmother, who are one degree removed further than the mother. Besides, the brothers and sisters may take as representing the father, under the general provision for representation within the degree of brothers" and sisters’ children. For, as the fa-would take all, if living, his children must be entitled the same, when he is dead, except as far as the mother in with them under the express provision of the statute — which forms a part of our Act of distributions. plaintiffs are, therefore, not entitled to any part of personal estate, and the bill must be dismissed so far it prays for it.

The foregoing declaration would suffice as between the plaintiffs and the defendants. But, as the defendants desire to ascertain how the estate is to be divided between themselves, and the matter is quite plain, the Court has no objection to- state, that the grandfather mothers take equally — that is, each of them takes one third part. They take in those proportions, because they are in equal degree of kindred to the intestate, and in tha^ case, the statute says, the estate shall be distributed equally to every one of them. The only exception to that rule is that of father and mother, and that did not originally exist; for the statutes of Charles 2nd made no distinction between the father and the mother, and therefore they succeeded together to the estate of a child, who left no-child or widow'. That continued to be the law until the before mentioned Act of James 2nd ; which gave the mother an equal share with their children, when her hus: band was dead, and by implication excluded her when the husband was living. But there is no such provision between grandfather and grandmother, or between the grandmother and uncles and aunts; and, therefore, the grandmother succeeds equally with the grandfather, and, of course, one grandmother stands upon an equality with the other.

Per Curiam.

Declared accordingly.