6 N.C. 228 | N.C. | 1813
Arthur Mabson was the testator's eldest son and heir at law. He died intestate in 1793, leaving the lessors of the plaintiff, Mildred and Louisa, his heirs at law. Mary Mabson, named in the third clause of the testator's will, entered into possession of the premises upon the death of her father, and remained in possession of them until 1808, when she died without issue, having by her last will, duly executed to pass real estate, devised the premises to the defendant. The premises described in the declaration were the same with those devised to Mary Mabson in the third clause of the testator's will. The question submitted to the Court was, "What estate in the premises did Mary Mabson take under her father's will?" The first clause of the will connected with this question, and by which the premises are given to Mary Mabson, certainly has only the effect of conveying to her an estate for life. The testator has not even expressed an *163 intention of giving away the whole of his estate — a circumstance which in many cases has been much relied upon. But what appears to be decisive of the question is the clause in which the testator directs, "that in case of the death of any of my aforesaid children without issue before the time they can get possession of their respective legacies, the legacies before bequeathed to such child so dying shall be equally divided between the survivors or survivor of them." It has been argued that the word legacy relates only to personal property; and no doubt it would be more correct to use it in that way; but most testators are unacquainted with that circumstance, and apply this word indiscriminately to both real and personal property, and so the testator applied it in this case. Hope v.Taylor, 1 Burr., 268, is an authority that settles this question. It certainly never could be the intention of the testator that in case Mary died before she got possession of the property given to her by the will, the personal property should be divided among the survivors, and the real estate either go to a residuary legatee or to the heir at law, as property undisposed of. Let judgment be entered for the defendant.
Cited: Tucker v. Tucker,
(231)
