Corbitt v. Corbitt, 54 N.C. 114, 1 Jones Eq. 114 (1853)

Dec. 1853 · Supreme Court of North Carolina

54 N.C. 114, 1 Jones Eq. 114

Corbitt against Corbitt.

A bequest to R of “negroes, &c., during her widowhood, and a sorrel'mare, &e., to dispose of as she may think proper.” I-Ield, that the latter expression does not apply to the slaves; as to them she did not take an absolute estate.

The word “ heirs,” when- used generally, in reference to personal property, means those, who take by law or under the Statute of Distribution.

A Court of Equity has no jurisdiction in oases of partition, unless the parties are tenants in common.

Cause removed from Court of Equity of Caswell, at Eall Term, 1853.

The case, as presented by the pleadings is as follows: Joseph Russell, in his last will and testament, bequeathed as follows: “ I give to my wife Katy the following negroes: Minerva, Martha and Kate, and all my household and kitchen furniture and farming utensils, as sees proper, during her widowhood, and a sorrel mare and colt, and her choice of four head of cow cattle, and all my stock of hogs and sheep-, and my crop of corn, wheat and oats, t-o dispose of as she may think proper.” The remainder in the slaves is in a subsequent clause given to “his lawful heirs.” The slaves mentioned in the above clause remained in the possession of the widow until her death, together' with their increase, except the woman Kate, who, together with four children, (born of her since the death of the testator,) were, several years since, sold by the said widow, to one Edward "VYatlington, who, at the filing of the bill, held them in his possession by virtue of his said purchase. The woman Minerva has had five children now living, Martha has had four children, and Kate has had four. The widow Katy Russell survived her husband many years, and died some four months since, having made and published a last will and testament, and her executor, George IV. Swepston, took into his possession Minerva and her children, and now has the same. The testator, Joseph Russell, had five children, to wit: Nancy, Judy, Emily, Thomas, William and Joseph, (the last being posthumous.) Shortly after the death of the testator, Nancy died intestate, in Caswell; several years afterwards Thomas died intestate, and more recently William has died intestate — all three without leaving a child or children or the issue of. such. Judith intermarried with the plaintiff, and died intestate, in Caswell county, upon whose estate the plaintiff has administered. He also took out letters of administration upon the estate of Thomas Russell, and the said George W. Swepston administered on the estates of William and Nancy.

The plaintiff insists in bis bill, that a life estate only was given to the widow Katy, by the will of the said Joseph Russell, in the said slaves and their increase, with a remainder to his children, and that, on the death of his widow, the plaintiff, as administrator of his wife, is entitled to one sixth part of the said slaves; that he is entitled to another sixth, as the administrator of Thomas; that, upon the deaths of Nancy, Thomas and William, their surviving mother and brother and sisters became equally entitled to their respective shares; that, as Nancy and Thomas both died before his wife Judy, he is entitled, as the administrator of his vafe, to the one sixth of the share to which Nancy 'was entitled, and, as administrator of Thomas, to one other sixth part of the said fancy’s share; and again, that, as administrator of his wife, he is entitled to one fifth part of Thomas’ share on said negroes, inclusive of the share of one sixth of Nancy’s interest. He further insists, that he is a tenant in common with Emily, Joseph Swepston and Watlington, of the said slaves, and 'is entitled to have a division of the same. Emily Corbitt, Joseph Russell, George W. Swep-ston. and Edward Watlington, are made defendants. The prayer is for a sale of the slaves for a division, or for a division according to law, and for general relief.

All the defendants answered. Joseph Russell and Emily Corbitt, his sister, after stating the facts of the case, with more minuteness, insist that, as William Russell survived Thomas, Nancy and plaintiff’s wifo Jndy,rhe cannot come in for any part of William’s share. The answer alleges, that William died in Arkansas, in the lifetime of the mother, and that, by -the laws of that State, the mother of said William became entitled alone to his estate; but that, if the same is distributable under the laws of North Carolina, the plaintiff (his wifo having died before William) could take nothing of that share. They, with Swepston and Watling-ton, insist that Katy Russell, the widow, under the said clause in the will of Joseph Russell, took an absolute estate in these slaves and their increase. "Watlington answers, that he purchased the negro Kate, and the children mentioned above, at a fair price, and took a bill of sale from the said Catharine or Katy Russell, believing he had a good title, as ho now believes, and denies that he holds the property as tenant in common with the plaintiff.

Kerr, for the plaintiff.

Morehead, for the defendant.

PeARSOet, J.

We think the property mentioned in the first item is divided into two classes. The three negro women, household, kitchen furniture and farming utensils, are given to the wife during her widowhood. The mare and colt, stock and crop, are given to her absolutely. In reference to this point, there is nothing to control the express limitation, u during her widowhood.” The nature of the property will readily suggest the reason for making a difference. The one is of a nature to last some tune — the other is perishable. This disposes of the construction contended for, by the defendants, that the widow took an absolute estate in the negroes, the only property now in controversy.

The plaintiff insisted, that, under the third item, the remainder in the negro women and their children, after the widow’s life estate is to be equally divided between the children of the testator or their representatives. The division is to be made, not between all of his children, for whose support he had just provided, but between his “lawful heirs” The word heirs is not appropriate to the- disposition of personal property, and when used in reference to it, means those who take by law or under the Statute of Distribution. This is the rule when there are no other words to give it a different meaning; here, the other words fix that to he the meaning, for it is put in opposition to “ children.” 2 Will’s Ex. 726.

The widow was entitled to one seventh part of the three negro women and their children. This will be declared to bo the opinion of the Court.

The prayer is for partition, as among tenants in common, but the bill discloses the fact, that the defendant Watlington holds one of the women and her children, under a purchase of the absolute estate, from the widow, and Watlington, in his answer, sets up title to them in severalty. This question must bo disposed of before a decree for partition can be-made,' for this Court cannot take jurisdiction, unless the-parties are tenants in common. The bill seems to have been hastily drawn, and the cause is set down for hearing on bill and answer, by which the allegation cf a claim in severalty, on the part of the defendant Watlington, to a part of the-claims, is admitted. Upon a suggestion that the main object of the parties is to get a construction of the will, in regard to the rights of the widow, the Court makes the declaration as above, and the cause is retained for further directions. The parties may moye hereafter as they arc-advised.

We give no opinion as to the rights of the parties upon a snb-division of the shares of the deceased children. The bill in that particular is multifarious.

. Decree accordingly*