Cutlar v. Cutlar, 9 N.C. 324, 2 Hawks 324 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 324, 2 Hawks 324

Frederick J. Cutlar, et als. v. Anna E. Cutlar.

From New-Hanover.

tf a man purchase land and die without issue, it descends for' the present, upon the brothers and sisters then in being; but if any are subsequently born, they become equally entitled; and the same law must prevail relative to half blood, where, under the laws of this State, tliey are entitled to inherit.

This was a petition for partition, filed by Frederick J. Cutlar, Jane Cutlar, and Euphemia Cutlar, setting forth, that in 1790, their father, Roger Cutlar, intermarried with Ellen Spillar, by whom he had issue, James Spillar Cutlar; that Ellen, wife of said Roger, died in 1794 ; that James Spillar Cutlar acquired, by purchase, certain lands, and died intestate and without issue, in August, 1797 ; that Roger Cutlar, in 1796, intermarried With Nancy Jones, mother of the petitioners ; that the said Roger and Nancy Cutlar, in January, 1797, bad is-' sue born, a daughter, Anna E. Cutlar. That after the death of James Spillar Cutlar, the petitioners were born, Jane in 1798, Frederick in 1801, and Euphemia in 1803. The petitioners claimed as co-heirs at law with Anna E. Cutlar of their half brother James Spillar Cutlar, and claimed each, one-fourth part of the real estate of which James died seised and possessed.

To this petition there was, in the Court below, a demurrer, which was sustained, and Plaintiff-; appealed.

Tateor, Chief-Justice,

delivered the opinion of the Court:

The petitioners are unquestionably entitled, each, to a fourth part of the estate of which J. S„ Cutlar died seised $ for notwithstanding the great and radical changes in the law of descent, which are introduced by our statute, the principle relative to posthumous and after-born children remains unaltered, and adapts itself to the course of descent instituted here. Accoiding to the British law, if lands arc given to a son, who dies leaving a sister his heir, if the parents have, at any distance of time after-wards, another son, this son shall divest the descent upon the sister, and take the estate as heir to his brother. Nor is it uncommon for the same estate to undergo frequent changes by the subsequent birth of presumptive heirs who are nearer, before it finally rests upon an heir apparent. An estate may be given to an only child, upon whose death it may descend upon an aunt as the nearest presumptive heir, who may be deprived of it by an after-born uncle, on whom a subsequent sister may enter, and who will again be deprived of the estate by the birth of a brother— (2 Blackstone’s Com. 209 — Chris. JVbfe.) A more precise analogy is presented by the case where a man has issue, a son and a daughter j the son purchases land in fee, and dies without issue, the daughter shall inherit the land 5 but if the iniber hath afterwards issue another daughter, sbe snail. be coparcener with her sister — (Co. Lit. 11 6.) So in. ^'s State, if the son purchases land, and dies without issue, it descends for the present upon the brothers and g¡s|.erg then being, but if any are subsequently born, they become equally entitled : and the same law must prevail relative to half-blood, where they are entitled to inherit. It follows, that the judgment sustaining the demurrer and dismissing the petition must be reversed, and the cause remanded for further proceedings.