Cline v. Latimore, 60 N.C. 207, 1 Win. 207 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 207, 1 Win. 207

DAVID CLINE, Executor of FRANK LATIMORE v. DANIEL LATIMORE and JAMES C. LATIMORE.

Testator gave to Lia wi(e g, tract of-land for, ber.life, and after disposing Of'sever&l other articles.of property and sums of money says: “ All my prope> ty that is not named, both real and personal, is to be sold and alter paying all my just debts, to be equally divided" between my lawful heirs in such a- way as to make them all equal." The reversion in the land devised to ihb wife for life falls into the residue and must be sold foran'equal division.

No action can be sustained on a covenant made by one of the heirs who had received more than his share, to secure the excess so received by him, until the reversion has been sold.

This was an action oí covenant brong/it on the following deed

Know all men by these presents, that we Daniel Lati-more, as principal, and Jas. C. Latimore and John Lati-more, as securities, promise to pay David Cline, Executor of Erank Latimore, dec’d., suon fum as may be due from the said Daniel Latimore to make. the other heirs equal with the said Daniel in the amount due each one from the said estate of Frank Latimore, deed. . Witness &c.

(Signed,) • ' D. LATÍMOEE, [l. s.]

JAS. C. LATIMOEE, [> s.]

JOHN LATIMORE, [n. s.]

Frank Latimore by his will gave to his widow who was alive at the" time of the trial,' a tract of land during her life, worth at the testators death two or. three thousand dollars. The will contains this clause. “ My eldest son Daniel I have given 228 aeres of land on Knohb Creek which was, worth $600, and other property worth $85, and also a negro boy named Anthony, provided be will refund back sufficient to make tbe rest of the heirs equal to himself, which, boy was worth $850.” The testator had many children, to some of whom he declares in his will he had made advancements of a certain value, and the dispositive part of his will concludes as follows:- “ My daughter Susan I have given her, her full share of all that I intend for her to have out of my estate. All my property that'is not named both real and personal; is to be sold, and after paying-my just debts to be equally divided between my lawful heirs in such a way as to make them all equal,- Susan excepted. The testators’ estate exclusive of the land devised to his widow for life, and including the property given to bis children other than Susan, was worth $8000, and Daniel had received more than his share by $900'. The reversion of the land given to the widow for life had not been sold.

The defendant moved to nonsuit the plaintiff, because he had brought suit before he had sold the reversion in the land devised to the widow. The Judge reserved the question of law, by consent of parties, with leave to enter a nonsuit if he should be of opinion with the defendant. The jury returned a verdict in favor of the plaintiff. The Judge being of opinion with the defendant, on the question of law reserved, ordered the verdict to be set aside and a nonsuit to be entered: from lyhich judgment the plaintiff appealed. . '

No counsel for plaintiff’ in this court.

Phillips for the defendant. '

MaNly, J.

¥e concur with the court below in awarding a judgment of nonsuit.

The reversion in the parcel of land devised to the wife for life was a part of the testators’ estate undisposed of specifically, and which fell therefore into the residue.

This the executor is required to sell and divide among the heirs, so as-to equalize shares. It must'be converted into-cash, and applied as the will directs; in other words, the will must be fully executed, before the sum secured by the covenant, can be ascertained or considered due. The action was therefore prematui e.

The judgment of nonsuit is affirmed.