53 N.C. 336 | N.C. | 1861
Upon the facts of the case as set forth in the pleadings (which are sufficiently stated in the opinion of this Court), his Honor below dismissed the petition, and the plaintiffs appealed. We gather the following facts from the pleadings: Charles Joyner, by his last will, left a parcel of land to be equally divided between his family of children, viz., Caroline, wife of the defendant Edwards; Eliza A., John F., Lavinia, and Clarinda Joyner. By the subsequent *258 death of two of the children, under age and intestate, that is, Eliza and Lavinia, the remaining three became entitled to the land as tenants in common. These three presented a petition to the court of equity of Greene, to have the land sold for a division, which was accordingly decreed, and the proceeds divided between them, each receiving $1,361.18. The case now before us, sets forth that another of the children, viz., Clarinda, is now dead, under age and intestate, and that the petitioner Jones, in right of his wife, Mary, who is the mother of the children, is entitled to a distributive share of this fund. This, we think, is a mistake of right.
By reference to the law, under which the proceedings for the sale were conducted, Rev. Code, ch. 82, secs. 6 and 7, it will be found (337) where real estate is converted into personalty for a division, the latter, if belonging to an infant, will continue of the character of realty, so as to be subject to the law of descent governing the transmission of real estate; and such will be the case, we take it, until a different character is impressed upon it by some act of the owner, according to what is said in Dudley v. Winfield,
In the case before us, the real estate had been converted by a sale in equity into personalty, and paid to the guardian of Clarinda; upon her death, therefore, intestate and under age, it would descend to her real representative, and not to her next of kin, under the statute for distributing personalty.
The petitioner Mary, therefore, who is the mother of the decedent, is not entitled to any portion of this fund, but it goes to the heirs-at-law according to the canons of descent regulating inheritances, to wit, to the brother and sister.
The judgment of the court below should be affirmed, and the petition dismissed with costs.
PER CURIAM. Petition dismissed.
Cited: Lyon v. Akin,
