Patton v. Patton, 60 N.C. 20, 1 Win. 20 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 20, 1 Win. 20

JULIA M. PATTON vs JAMES A. PATTON, AUGUSTUS W. PATTON, ALBERT T. SUMMEY, Administrator of WM. A. PATTON, deceased, and others.

Where real estate of inheritance Is purchased, by a partnership, for partnership purposes, and is so used, on the death of one of the part* ners, his widow is entitled to dower.

A testator devised land arid bequeathed personal estate to sundry persons. By a residuary clause lie gives all the rest of his estate real and personal to his executors, in trust io sell and divide the proceeds among his wife and children. Then follows immediately this clause : •'I direct my executors to keep my estate together and not to hand vih'.r any of thu devises or legacies, until mv existing rail road contracts in T. and N. 0. are completed.”

TLe last' cUu?e ^las relation only to what is given by the residuary chi use.

The plaintiff filed this bill fo recover dower in †-'.e lands <0 which heríate husband, William A. Patton, died, seized and possessed.

j here was no controversy except about a piece of laud celled the fan yard lot, stud some tracts of land devised to her Life husband by Janies YJ. Patton, deceased.

■ The malerlf.l facts respecting the tan yard. lot are: in W.C, William A. PAtton, Washington Morrison, James A. .i/ation ami Samuel G. Kerr, formed a partnership for the purpo.-o & tanning leather, manufacturing leather into shoes, ka. ’Wiliam A. Patton was the owner in foe 01 a piece of land conveniently situated for carrying on the business of the linn. K-a conveyed throe-fourths of it to the three other partners retaining the other fourth, and each partner put his fourth Axto the partnership as part of his stock, and the whole piece of land was used for tbe purposes of tbe firm during its continuance. As to the other subject of controversy, James W. Patton devised several town lots and tracts of land to his son, Wrn. A. Patton, in fee, and bequeathed" to him some slaves. He demised and bequeathed many other town lots and tracts of land and slaves to his wife and children, other than William A. ■

The will then proceeds as follóws : “ All the rest and residue of my estate, real and personal, and mixed, whenever situate, including land, negroes, chatties, and qvery interest legal and equitable, I will, devise and bequeath to my executors hereinafter named, and-such of them as act, and the survivors of them, in trust to be sold at public or private sale as they may judge best, and the lands in tracts or parts of tracts or lots as they may from time to time judge best, and on such terms' as they may determine for the in.terest of the estate, and of the proceeds of the sales and collections of the debts due to me, pay all debts’ owed by me, and the surplus of said funds to pay over to and distribute equally between my said -wife Henrietta Iverr Patton, my sons James A. Patton, 'William Augustus Patlon, Thomas. W. Patton and my daughter Frances L. Patton. L direct my executors to keep my estate together and not to hand over any of the devises or legacies, until my existing rail road contracts in.Tennessee and North Carolina are completed, and after giving some practical directions respecting his rail road contracts, the testator says “ and after the said rail road contracts are completed, the various legacies and devises herein contained shall take effect. But in the meantime the provisions herein.herein. made for my wife shall take effect at once, or such part thereof as she desires,” .and “ if for any cause my executors should think it necessary to sell one or more of the slaves directed to he sold, even before said rail road contracts are completed, for bad conduct or other cause, they are at liberty to do so.” The testator, James W. Patton,'died in 1861, and the W. A. Patton died in 18.63.

Merrimon' for the plaintiff.

No counsel for the defendants in this court.

PeaRsON, C. J.

The right of the plaintiff to dower in the tan yard lot, is settled by the case of Summey vs. Patton, at this term. The, lot having been sold by the surviving partners, there will be a reference to fix the amount to which she is entitled absolutely, according to the rateable value of her life estate.

We are of opinion she is also entitled to dower in all of the land' acquired by her husband under the will of J. W. Patton, except the tracts or parcels of land which pass to the •executors under the residuary clause, in trust te be sold by them, and the proceeds of sale divided equally among his wife and children. .A devise operates as a conveyanqe. The land passes directly from the divosor to the devisee, and the executor takes no estate or interest in it. For this reason the lands given specifically to the wife and children', do npt come within the operation of that clause, which directs the executor “ to keep my estate together, and not to hand over any of the devises or legacies, until my existing rail road contracts in Tennessee and North Carolina are completed.” In reference to land specifically given, .the words " not to hand over,” can have no application whatever. Indeed apart from this principle growing out of the essential difference between k deviso and a legacy, we should incline to the opinion, that by a proper construction, this restriction only applies to the property containe i in the residuary clause. It is a part of that clause, and is naturally confined to the property therein disposed of: to say nothing of the unreasonableness of the sppposition, that it was the intention to tie up his wb'ole estate, real and personal, until a future event which might not happen for several years, Waving his wife and children in the meantime to starve. If such had been the intention, there surely would have been some provision; for thoir support. And the fact that the land in the hands of the devisees, would still remain ultimately liable for the -debts of the devisor, in aid of the other portions of his estate towards the completion of the rail road contracts, seems to ¿confirm the soundness of this construction.

Decree for the plaintiff.