60 N.C. 255 | N.C. | 1864
Tbe controversy in tbis case arises upon tbé construction of tbe following clause in tbe will of Dempsey Blake, deceased: “I give and 'bequeath to my daughter Anne, my negro woman Sarah, to her and her heirs of her own body forever, and if none, to return after her death to the rest of my children equally. The question is, whether the limitation over to the rest of the testator’s children, is too remote,- and therefore void. The will was made in the year 1819, so that the construction is not controlled by. the act of 1827 ; and that act can not be allowed to influence our decision, except perhaps as indicating to us that the Legislature of that year thought the Courts had gone too far in holding that the expressions dying without heirs or heirs of the body, or'without issue or issue of the body, &c., meant an indefinite failure of such heirs or issue, and not heirs or issue living at the death of the testator.. Many decisions, both of the English Courts and of those of this State, affecting the question now before us, have been brought to our attention by the counsel; and the task of showing an entire consistency among them would be a difficult one, if it were necessary for us to undertake it! From this difficulty, however, wo are relieved by one or two recent adjudications of this Court, the'authority of which we do not feel ourselves at liberty to dispute.
In the case of Baker vs. Pender, 5 Jones, Rep. 351, the bequest was in the following, words : cc The balance of the property to be for the sole use and benefit of my wife, to her and her heirs lawfully begotten of her body, forever ; but should my wife'die without her heirs of her body, then, at her decease, the whole of the property to go to the use and benefit of my daughter Nancy and her heirs forever.” The contest was about a slave, and the question was, whelhei Ihe limitation oyer to the testator’s daughter Nancy, who was a' child by a former wife, was too remote. In deliver