Aydlett v. . Small

20 S.E. 163, 115 N.C. 1

• Court: Supreme Court of North Carolina
• Decided: September 5, 1894
• Status: Published

Opinion

Btjkwell, J.:

These appeals require us to construe the will of Mary E. Overman, which was written in 1888. She died in December, 1891. It must be considered as speaking at the date of her death, when it took effect, there appearing in the will no reason why the words used by the testatrix should not be so interpreted. The Code, § 2141,

The words to be construed are these: “All my undivided interest and property in the estate of the late George W. Charles.” The testatrix was one of the heirs at law and devisees of said Charles.

It does not seem to us that any property that she had actually received and appropriated from the estate can be said, with any propriety, to be a part of her “interest and property in the estate of the late George W. Charles.” Whenever an administrator pays to a distributee of the estate a part of his share, the distributee’s “ interest and property” in the estate is reduced pro tanto. When he has paid all the share, the dis-tributee’s “ interest and property ” in the estate is destroyed. Prior to the payments the right to demand and receive the distributive share belonged to the estate of the distributee. The money belonged to the estate of the intestate. As soon as the payment was made the money became eo instanti a part of the estate of the distributee, and ceased to be a part of the estate of the intestate. Hence, the sum of money ($943.95) which the testatrix had to her credit in. bank at the time of her death, when, as stated above, her will speaks, constituted no part of her “ interest and property in the estate of the late George W. Charles.” It had been paid to her because she was one of the heirs and devisees of said Charles, but, when paid, it ceased to be, in any sense, a part of the Charles estate. This seems clear. And it seems even more evident that this sum, after it was received by her, constituted no part of her “undivided interest and property” in that estate. True, it is very evident that she got this particular money from the Charles estate; but the phrase under consideration cannot be held to include it.

We think, however, that those words do cover that portion of the proceeds of the sale of the Charles land which had not been collected by the Commissioner at the time of her death, and which was thereafter paid to her executor. She had consented that the land might be sold for partition ; that it might be sold and the proceeds divided among the heirs and devisees of George W. Charles. The sale had been made, but the division of the proceeds was not finished. Had she lived, she would have taken a share of the balance of the purchase-money in her character as heir and devisee of Geo. W. Charles.

Speaking at her death by her will, she declared her intention as to all her “undivided interest and property in his estate.” The words include whatever property her executor could lawfully demand only because his testatrix was one of the heirs or devisees of Charles. His title to the money in the bank ($943.95) needed no other support than the fact that he was the executor of her will. His right to demand of the Commissioner a share of the proceeds of the sale of the land rested necessarily on two facts, his executorship and the fact that she was an heir and devisee of Charles.

Affirmed in each appeal.