69 S.E. 135 | N.C. | 1910
The rights of the parties depend, first, upon the proper construction of the following items in the will of Elizabeth T. Jones: "Second. I devise that the negroes be kept together on the plantation and the farm be carried on in the same way as it was in my lifetime, until Nancy P. Jones shall marry or become of twenty-one years of age, or either Needham P. Jones or Alfred Jones shall become of twenty-one years of age, then the property, both real and personal, shall be equally divided between them.
"Third. I devise that one-half of each distributive share to my children, Nancy P. Jones, Needham P. Jones and Alfred Jones, as directed above, shall be settled upon each one of my children, which shall always and at all times be free from all claims of any and all persons, so that they shall have the use of said half of each one's distributive share during their natural life, and at their death be equally divided between their children, and if either of them shall die and leave no children or no will (which power I give either of them over said one-half of each distributive share to will), then the said half distributive share shall go to the living child or children." The will was written in 1850, and, *185
upon the death of the testatrix in 1864, was duly admitted to probate. The three children of the testatrix were then minors and unmarried. The property of the testatrix in her negroes was, soon after her death, swept away by the stern command of "grim visaged war," and the case presents for determination solely the disposition of her lands. The first contention of the defendant Myatt is that by item 2 the testatrix devised her real and personal property to her three children to be equally divided between them, and that by the use of the (227) words, "distributive share," in item 3, the testatrix limited the property disposed of under that item to personal property. We do not think this construction properly interprets the intention of the testatrix as manifested by the other words of the will. It may here be stated that the children of Elizabeth T. Jones are dead, each leaving children, except Mrs. Nannie P. Jones, who is living and has children, and the plaintiffs are the children of Alfred Jones, and neither of them exercised the power of disposition by will, each dying intestate. While it is undoubtedly true that the words, "distributive share," ordinarily refers to personal property, and "distributee" denotes the person or persons upon whom such property devolves by act of law in cases of intestacy (Revisal, secs. 132, 144, 145, 155; Boyd v. Small,
It also appears in the case that Nancy Price died in 1874, leaving a last will and testament, which was duly admitted to probate, in which she devised in fee and in equal parts, a large body of land in Wake County to her three grandchildren, Nancy P. Jones, Needham P. Jones *187
and Alfred Jones — the children of Elizabeth T. Jones. These lands contained 1,526 acres; the lands devised under the will of Elizabeth T. Jones contained 1,230 acres. By the will of Mrs. Price the three Jones children became tenants in common in fee of undivided interests in the land devised by her to them. On the 5th day of June, 1876, the three Jones children, being then of age, agreed upon a division of the lands devised by Mrs. Price and Mrs. Jones. The partition was affected by deed, and we think it was competent to be so done. Being tenants in common of equal shares, but not of the same interests in both devised lands, they, instead of dividing the Price land into three shares of equal value, and of dividing the Jones land into three shares of equal value, and each taking one of these shares in each body of land, they agreed upon a different method of partition, as follows: Needham P. Jones took all the Price land at the valuation of $15,260; and the Jones land was divided between Alfred Jones, 590 acres at the valuation of $14,300, and Nancy P. Jones 640 acres at the valuation of $12,200. Equality of partition at these valuations was restored to Nancy P. Jones by the payment to her by Needham P. Jones of $1,140 and by Alfred Jones of $180. The result of this partition was the exchange by Alfred and Nancy Jones of their two-thirds interest in the Price land, which they held in fee, with Needham P. Jones, for his one-third share in the lands of Elizabeth T. Jones. It is expressly admitted that this partition has been ratified and confirmed by the children of Needham, Alfred and Nancy, and the precise question presented by this case is what fractional part of the 590 acres allotted to Alfred are his children entitled to under the will of Elizabeth T. Jones (230) This interest is derived exclusively from that will. It is settled by several decisions of this Court that actual partition merely designates the share of the tenant in common and allots it to him in severalty.Harrison v. Ray,
Modified and affirmed.
Cited: Beacom v. Amos,