16 N.C. 10 | N.C. | 1826
The plaintiff Milberry is the daughter and the plaintiffs Thomas and Teakle the grandsons of Priscilla, and claim to have the residue divided into seven equal parts.
On the Spring Circuit of 1821, NASH, J., by an interlocutory decree, directed the residue to be divided according to the prayer of the bill. A bill of review, and a petition for a rehearing were filed, and the cause stood in this Court upon the original bill and the bill of review, both having been transferred to this Court.
This case was twice argued, viz., at December Term, 1824, and at December Term, 1825. *12
The Court held this case under advisement until this term.
I think, in principle, this question was decided at the last term, Croom v. Herring,
The decree in this case must be reversed, and an account taken of the money paid under it, and the property mentioned in the residuary clause of Rowland Williams' will must be divided into five equal parts, one of which is decreed to each of the children of the testator, to wit, Pilgrim, Diana, Charity and Elizabeth, and one-half of the remaining fifth to Micajah Ricks, and the other half of said fifth equally between Thomas Ricks and Teakle Ricks. And for this purpose the master will take an account.
There being in this case both bill of review and a petition to rehear, the bill of review must be dismissed, but without costs — the loose practice in our courts of equity rendering it somewhat difficult to ascertain the propriety of using the one or the other, and these proceedings were commenced before the decision in Jones v. Zollicoffer,
Decree set aside.
Cited: Edney v. Edney,
(12)