Cooper v. Cannon, 62 N.C. 83, 1 Phil. Eq. 83 (1867)

Jan. 1867 · Supreme Court of North Carolina

62 N.C. 83, 1 Phil. Eq. 83

MARTHA COOPER and others v. CALEB CANNON, Administrator, and others.

Where a testator, having devised certain properly to his wife, ordered that after her death, the remainder should “be divided amongst our next of kin,” and died leaving no persons who were at once next of kin to both; Eeld, that the property should be divided into two equal parts, and be given, one to the next of kin of the testator, the other to the next of kin of his wife.

{Qranikj v. Sawyer, ante, p. 9, cited and approved.)

Bill, for the settlement of an estate, filed to Spring Term, 1861,/of the Court of Equity for Pitt, and, at Spring Term, 1866, transmitted, upon bill, answers and exhibits, to this court.

The complainants, who were some of the next of kin oí Theophilus Slaughter, deceased, set forth that he left a considerable estate, most of which he had devised to his wife, and then, “ at the death of my beloved wife, whatever property remains belonging to my estate, to be divided amongst our next of kin,” &c.; that the testator had left no persons who were, at the same time, next of kin to both himself and his wife; but had left some who were next of kin to him, and others who were next of kin to his wife. They claimed that under the above devise the testator’s next of kin alone were entitled. The prayer was for an account from the administrator with the will annexed, a sale of the land that belonged to the estate, for distribution, and for further relief.

The bill was taken pro confesso against certain other of the next of kin of the testator, who were out oí th'é State.

The answers admitted the facts stated in the bill, but claimed that the property was distributable, under the clause in question, among the next of kin of both parties.

Rogers & Batchelor, for the complainants.

No counsel for the defendants.

Reade, J.

The clause of the will presented for consideration is as follows:

“I give unto my beloved wife, Nancy, all of my stock,” &c., “ Whatever property remains belonging to my estate to be divided among our next of kin.”

There are persons who are next of kin to the husband, (the testator,) and there are persons who are next of kin to the wife; but there are no persons who are next of kin to both husband and wife.

The question is, who are meant by our next of kin ?

If there were persons next of kin to both husband and wife, they would fit the description, our next of kin, and they would take the whole.

As there are none such, then the estate must be divided into two equal parts, and one part distributed among the next of kin to the husband, and the other part among the next of kin to the wife. Grandy v. Sawyer, ante, p. 9.

There will be a reference for an account, if the parties desire it.

Per Cdriam.

Decree accordingly.