10 N.C. 74 | N.C. | 1824
Matthias Tolar was seized in his lifetime in fee simple of the lands mentioned in the petition, then of the value of $2,000, and was possessed of a small personal estate, and being so seized and possessed, on 13 April, 1812, duly made and published his last will and testament, executed so as to pass real estate, in the following words:
"This may certify that I, Matthias Tolar, do give and bequeath unto my wife, Sally Tolar, all that I possess, indoors and outdoors, except she should get married; and if she does, then to my two daughters, Maria and Harriet Tolar; one shilling to Nathaniel Tolar, and one shilling to Sally Tolar, junior. This is my will and wish, after my debts are paid." (75)
Matthias Tolar died without having revoked or altered his will; which, after his death, was duly proved in Currituck County court. The petitioners are the children of Matthias Tolar by a former wife, and the defendants were the children testator had by the wife named in his will, and these four are his only heirs at law. The last wife survived her husband, and was married again before this petition was filed. Testator's personal estate was exhausted in the payment of his debts.
The petitioners contended that the lands did not pass under the will, but descended to them and the defendants, and prayed for a writ of partition. The defendants claimed the lands under the will as devised to them, and moved to dismiss the petition.
The presiding judge being of opinion that the lands did pass under the will to the defendants, sustained their motion, and ordered the petition to be dismissed; whereupon the petitioners appealed. The testator had a wife and four children; two of whom, by a former wife, lived separate from him without his consent. The bulk of his property consisted of the tract of land on which he lived and a very inconsiderable personal estate which was exhausted in the payment of his debts. In his will he manifests his displeasure towards his two elder children by giving them a shilling each; influenced, *40 no doubt, by the common but erroneous notion that it is necessary to give something to a child in order effectually to disinherit him. After these bequests it is quite improbable that he meant to die intestate as to his real estate, so as to let these two children share with the others; and where the intent is so apparent too much stress ought not to be laid on the strict significance of words. He could not but know that his personal property was inadequate to the support of his wife during her widowhood, and that a remainder of it to his younger children would (76) be illusive. The words "what I may die possessed of" have been held sufficient to describe property of whatever description. 8 Vesey, 606. And the words "all I am worth" are sufficient to pass real estate. 1 Bro. C. C., 437. The petition must be
PER CURIAM. Dismissed.
Cited: Clark v. Hyman,