Norwood v. Branch, 5 N.C. 598, 2 Car. L. Rep. 598 (1816)

July 1816 · Supreme Court of North Carolina

5 N.C. 598, 2 Car. L. Rep. 598

Norwood v. Branch and others.

John Branch, being seised and possessed of a large real and personal estate, devised the same amongst his children, with the exception of his daughter Patience, as to the real estate, but to whom he bequeathed more than a full proportion of his personal property. Upon several of his children also he had made settlements in his life time of lands to a considerable value, but none upon his daughter Patience. John Branch died without making any disposition of a certain tract of land of 789 acres. Several of his children, to whom he had devised and given land died, leaving children ; all of whom were parties to this petition, the object of which was to compel the children of John Branch and his grandchildren, whose fathers had been advanced, to bring into hotchpot, the lands respectively settled, provided they claimed a share with Patience of the tract of land of which John Branch died intestate.

The case was argued by Norwood, for the plaintiff, and Browne, for the defendant.

Taylor, C. J.

delivered the opinion of the Court:

This case depends entirely upon the just construction of the act of 1784 regulating descents, and the act of 1795 admitting females to the inheritance; the great object of which laws is to make the estates of the children entitled to the inheritance, as nearly equal as possible. It is to descend to all the children, share and share alike, except such sons or daughters as have had lands settled on them by their deceased parents, equal to the share descending to the other children. If the share so settled, be not equal to the part descending, it is to be made so out of that. The term employed by the law is, ‘ settle,’ and this applies as significantly to a devise as to a deed. The opposite construction drawn from the English statute of distribution, has been in consequence of the peculiar wording of the act, which has the word ‘lifetime,’ and has been thought to signify such a provision as is made in the intestate’s lifetime, and not jay will—2 P. Wm. 441, though the decisions have not been uniform in this.—9 Vesey, 413. We are therefore of opinion, that the children of John Branch, upon whom lands been settled by him, either by deed or devise, and his grandchildren upon whose parents similar settlements have been made, must bring into hotchpot all such lands, provided they claim to share with Patience or the petitioner who purchased from her, in the tract of land of which John Branch died intestate.