1 N.C. 20 | N.C. | 1864
The right of the plaintiff to.dower in the tan yard lot, is settled by the case of Summcy vs. Patton, ai: this term. TheTot having been spld by the surviving partners, there will be a reference to fix the amonnt to which she is entitled absolutely, according to the rateable value of her life estate.
We are of opinion she is also entitled to dower in all of the land acquired by her husband under the will of J.'W. Patton, except the tracts or parcels of land which pass to the executors under the residuary clause, in trust te be sold by them, and the proceeds of sale divided equally’ among his wife and children. A devise operates as a conveyance. The' land passes directly from the divosor to the devisee, and the, executor takes no estate or interest in it. For this reason •¿he lands given specifically to the wife and children, do not come within the operation of that clause, which directs the executor “ to keep my estate together, .and not to hand over any of the devises or legacies, until my existing rail road contracts in Tennessee and North Carolina are completed.” In reference to land specifically given, the words “ not to hand over,” can have no application whatever. Indeed apart from this principle growing out of the essential difi'er-ence between a devise and'a legacy, we should incline to the opinion, that by a proper construction, this restriction only applies to the property containe Í in the residuary clause. It is a part of that clause, and is naturally confined to the pro1 perty therein disposed of: to say nothing of the unreasonableness of the sppposition, that it* was the intention to tie up
Decree for the plaintiff.
