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 gives to his wife real and personal property for life, and directs that at her death it should al!, real and personal, be sold, and the money equally diyided amoTg his children. By the direction to sell, the land is converted into personalty.

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

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

Robert Kincaid by his will gave real and personal property to bis wife for life or widowhood, tbe real property being land owned in fee by tbe testator, and made divers dispositions thereof to take effect after tbe death or second marriage of his'widow. Afterwards in 3836, be 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.” And further I Svill and bequeath to my wife during her life, my negro woman Sue, and at her death, said woman Sue to he §old 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 the defendant in this court.

Battue, J.

The direction in the will of Robert Ivincaid, that upon the death of his wife the land and negroes which lie had given to her for life, should be sold and tne proceeds equally divide^ among his 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 of 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 Ufe, which upon her death in the lifetime of her mother, belonged to her husband as her administrator.

This doctrine is so well settled that it is unnecessary to enter into a further discussion of it.'