Woodford v. Higly, 60 N.C. 237, 1 Win. 237 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 237, 1 Win. 237

SARAH WOODFORD vs. LUTHER HIGLY AND WIFE.

A conveyance of latiíl tvs a man and his wife and thek heirs, vests the eti* iirety lu each of them, and upou the death' of one of them, the survivor takes the who!;? iu severalty,

The case of Denoo, demise of Ms (¡ley vs. Whitmore, 2 Dev. and Bit. 68T, cited and approved.

This was a petition for cfower tried before Heath, Judge at Fall Term of Lincoln Superior Court, 1863.

In. 1822, John Boyd conveyed the land in which dower is demanded to Lyman Woodford and his wife Jane, (she being the daughter of Boyd,) and their hei»s, to have and to them after the death of the grantor and his wife.,- John Boyd and his wife died in the lifetime of Woodford and his wife. Then Mrs. Woodford died and Woodford married the petitioner and died.

The Judge below decided that the petitioner was entitled' to dower in the whole of the land,

Fowle for the petitioner.

No counsel for the defendants in. this Court.

Manly J.

The judgment of the Court helow is in conformity with the decision of this Court in the case of Den on demise of Mabley vs. Whitmore, 2 Dev. and Bat., 537, and is certainly correct. The c ¡ntrary view arises, we suppose, from a misapplication to the case of the statute in relation to estates held in joint tenancy, Rev. Code, ch. 43p s. 2, where it is declared that in cases of estafes hold in joint tenancy, the part or share of a tenant djHtigj shall not go to the surviving tenant, but to the heir of the deceased.

Lyman Woodford and his wife Jane were not joiut tenants, and n«ither had a part or share to go to the heir or ' assignee of the one dying- first. When land is conveyed to a husband and wife, they hold by entireties. “ Being in law but-one person, they have,each the whole estate as one person, .and on the death of cither of them the whole estate continues in the survivor.”

This has been lonn established as the rule governing' cases of this kind, as will be seen by reference to the authorities cited in the case of Malby vs. Whitmore.

Let the judgment be affirmed.