Allen v. . Watson

5 N.C. 189

• Court: Supreme Court of North Carolina
• Decided: July 5, 1808
• Status: Published

Opinion

The evident construction of this will is that after the life estate is exhausted, the executors shall sell the property for the benefit of the children. The assent operates only upon the life estate; because, before the remainder can vest in the children, a sale must take place. It is the circumstance by which this case is distinguished from the common cases, where an assent to the first taker vests the property in the remainderman. The executor must be considered as trustee for the purposes of the sale and distribution amongst the children, and therefore have a right to recover. Judgment for the plaintiff.

Cited: Acheson v. McCombs, 38 N.C. 555; Baines v. Drake, 50 N.C. 154;Windley v. Gaylord, 52 N.C. 57; McKay v. Guirken, 102 N.C. 24.