Ross v. Toms, 9 N.C. 9, 2 Hawks 9 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 9, 2 Hawks 9

Ross v. Toms and wife, and another.

From Perquimons.

Tbo Imif-blood is entitled to inherit in purchased estates.

This was a petition for partition of lauds, (banded on the following facts t Miles Harvey being seised and possessed of the premises described in the petition, made his will, duly executed to pass lauds, and therein devised the plantation whereon he lived, to his wife for life, remainder to his son Miles Edward Harvey. Miles Harvey died in the latter part of the fall or beginning of the winter of the year 1784, leaving four children, viz : James, Miles Edward, Sarah, and Martha.

James and Sarah died intestate and without issue, previous to 1800. Martha intermarried with Charles Blount, and died in 1806, leaving Sarah, now the wife of Toms the Defendant, and James Blount the other Defendant, her only heirs at law. Mary, the widow and devisee, of Miles Harvey, intermarried with Martin Boss, senior, by whom .she had issue Martin Boss, junior, the petitioner ; but previous to her second marriage she conveyed to Miles Edward Harvey, her life estate in the lands devised by the will of Miles Ilarvey.

Miles Edward Harvey died in the year 1800, intestate and without issue, leaving his sister Martha Blount of the whole bloxL end Martin Ross, junior, his maternal brother of the half-blood, surviving him.

The Court below. holding’ that Miles Edward Ilar-vey took by purchase and not by desceñí, decreed partition to be made as prayed for, and the Defendants appealed.

Taylor, Chief-Justice,

delivered the opinion of the Court:

If Miles Harvey had died intestate in the fall of 1784, Ids two sons would have been his heirs, under th, act which passed in the April of that year. But. having devised the land in controversy to Miles Edward Harvey, he took under the will by purchase, and having died intestate, his maternal half brother inherits one moiety of the land, and the bdra of his sister Martha the other moiety. The partition between them must consequently be made according to the prayer of the petition.