45 N.C. 188 | N.C. | 1853
The plaintiff states in his bill, that the sealed note executed by him to the defendant’s testator for $1,694 11, on the 30th day of January, 1850, is the same debt, with the interest thereon, bequeathed to him by the testator; that the testator did not intend by taking a new note for the amount of the principal and interest of the debt to revoke the legacy, and he contends that in law it is not revoked or adeemed. The demurrer admits the facts, and we are called on to decide whether the plaintiff has deduced the proper legal conclusion from therein.
Upon the authorities there may seem to be some conflict of judicial opinion, but the weight of them is, we think, on (he side of the plaintiff, and is supported by reason and principle. In the case of Dingwell v. Askew, 1 Cox. Rep. 427, it is stated that previously to the marriage of the testatrix, stock was vested in trustees to her separate use for life, then to the issue of the marriage, afterwards, according to her appointment by will, notwithstanding the marriage ; and in default of appointment to the testatrix absolutely. She executed her power, survived her husband, and then took a transfer of the stock from the trustees into her own name, and died without having made any other disposition of it.
An attentive examination of these, together with other cases on the same subject, will show that the true principle to be extracted
We think that we have succeeded in showing that both authority and principle are bn the side of the plaintiff, which entitled him to have the demurrer overruled.
Pee CuRiam. Demurrer overruled.