Conly v. Kincaid, 60 N.C. 44, 1 Win. 44 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 44, 1 Win. 44

J. W. CONLY, Admr., and others against JOHN KINCAID and others.

A testator givds to his wife real. and personal property for life, and directs that at her death it should all, real and personal, be sold, and the money equally diyided amoTg his children; JBy the direction to sell, the land is conrerted into personalty. • <

One of the daughters of the testator died after the testator, in the lifetime oí his widow, leaving a husband surviving. As her administra" tor, he is entitled tcf one-seventh of the.money arising from the sale of the property given to the widow for lile.

The case of Powell vs. Powell, 6 Ired. Eq. 50, cited and approved.

Robert Kincaid by his will gave real and personal property to Ms wife for life or widowhood, the real property being land owned in fee by the testator, and made divers dispositions thereof to take effect after the death or second .marriage of' his widow. Afterwards in 3836, he made a codicil by which he gave to his wife a negro girl named Adeline, during her life, and at her death, Adeline and her offspring together with Alfred and the plantation left to his wife are to be sold for the most that can be got for them at public sale “ and equally divided between my seven children named'in this will.5’ And further I'will and be- ' queath to my wife during her life, my negro.'woman Sue, ’ and at her death, said woman Sue to be sold and the money divided equally between my children aforesaid.’' Patsey, the deceased wife of- the plaintiff John Conly, was a child of the testator and one of the seven named in the will. She died-after the testator, in the lifetime of the testator’s widow, and her husband is her administrator.

Merriman for the plaintiff.

No counsel for tbe defendant in this court.

Battle, J.

The direction in the will of Ilobert Kincaid, that upon the death of his wife the land and negroes which he had given to her for life, should be sold and tne proceeds equally divided among I1Í3 seven named children, had the effect to convert the real estate into personalty, and in the events which have happened, the plaintiff J. "W\ Conly, is entitled to one share as the representative ot his first wife Patsey. Powell vs. Powell, 6 Ired. Eq. 50. Adams Eq. 150. Patsey had a vested interest in the property given to her mother for life, which "upon her death in the lifetime of her mother, belonged to her husband as her administrator.

This doctriuo is so well set1’id that if is niaiorci-sary to enter into-a farther discussion of it.