Stow v. . Ward

12 N.C. 67 | N.C. | 1826

This case, which is reported 10 N.C. 604, came before the Court at this term upon the return of the partition, made according to the interlocutory decree of this Court at June Term, 1825. When I take a review of the construction which I once thought I was bound by precedents to give this will — precedents which in reality neither bore nor professed to bear upon it, so far as regards the real estate — and the struggles which I made in my own mind to get rid of them, it appears that I must then have labored under something like a delusion; for it was never for a single moment doubted, as far as I can collect from authorities, that where persons come to an estate as heirs, whether by descent as having been in by their ancestor, or by purchase as a new (68) acquisition, under the description of heirs, that they take per stripes and not per capita; they take it in a representative and collective character, and as to others, are considered as an unit, however they may subdivide and parcel out the property among themselves; they take not individually, but collectively; not separately, but conjunctively. A has a daughter and two granddaughters, daughters of a deceased daughter; his lands descend one-half to his daughter and the other half to his two granddaughters. So if the limitation had been to the heirs of A, making them take as purchasers, they would take the estate in the same proportions, that is, per stirpes and not per capita; in the case of the descent, the lands of which A died seized descend to his daughter and granddaughters, as persons designated by the canon of descent, under the description of heirs, or rather as heirs; in the latter case the same canons of descent point out the purchasers, and they take the same proportions as if the lands had descended from A. It is a fallacy to say that the law designates the persons, and the will points out a separate, equal, and individual interest in each. The will points to them as a unit, and the canons of descent do the same. I have not a doubt but the presiding judge was right when he said the devisor intended a division by stocks or families; if so, he could not have used a word in our language more appropriate, for the reasons given in Croom v. Herring, 11 N.C. 393.

Suppose one of the brothers had died after the date of the will and before the testator, leaving ten children: the surviving brother or sister of the testator would have to share equally with all these children, to get, instead of a third or a fourth, only a twenty-fifth part, or less if there were more children. The testator having in his will given a legacy to his brother, thereby noticing that he is alive, the word heirs is to be construed heirs apparent, not only as to his (69) heirs, but as to all where the parents are alive — that is, where it is necessary.

I must confess I feel some difficulty as to the double portion of Levi Ward, but the strong inclination of my mind is, and so I must decide, that he is entitled to one-fourth under the description given by name, and to one-half of one-fourth under that "of heirs of Sally Ward."

The former decree must be set aside, and the decree of the Superior Court reversed; for by that Levi Ward was allowed only half of one-third, whereas he is entitled to three-eights, to wit, one-fourth, and one-half of one-fourth. Let it be decreed that the estate be divided into four equal parts, and that one-fourth be allotted to the heirs of John Ford, one-fourth to the heirs of Nancy Stow, one-fourth to the heirs of Sally Ward, and one-fourth to Levi Ward.

The authorities which perplexed us in this case relate entirely to personal property.

Decree reversed.

TAYLOR, C. J., dissented.

Overruled: Ward v. Stowe, 17 N.C. 509. Cited: Gatlin v. Walton,60 N.C. 360; Clement v. Coble, 55 N.C. 82.