Baird v. . Winstead

31 S.E. 390, 123 N.C. 181, 1898 N.C. LEXIS 42

• Court: Supreme Court of North Carolina
• Decided: November 9, 1898
• Status: Published

Opinion

Clark, J.:

Clause 5 of the will gives the residue of the estate absolutely “to be equally divided’’ between the testator’s six sons, therein named, Thomas being one of them. In clause 7 there is a condition or de-feasance, “should my son Thomas die without leaving issue, then I desire that his share as above shall be equally divided among his brothers, and if any of his brothers be then dead, the children of the dead brothers shall take their dead father’s share; if, however, Thomas should leave a widow I desire her to have the use of the property during her life or widowhood.” The estate of Thomas was absolute unless defeated by his dying without issue, and only if thus defeated did the reservation of a life estate to the widow take effect as a limitation upon Thomas’ entire share going to his brothers. Should he die leaving issue, it was evidently contemplated (Code, Section 2180) that the estate should go in usual course unless devised or sold by him, to his issue with the right of dower in his wife. Thomas died leaving issue, and the only contingency in which the widow could claim a life estate in the property has not arisen. The defendants hold the realty under purchase at a sale thereof by the assignee in bankruptcy of Thomas, who intermarried with the plaintiff and also acquired the land prior to 1860. She is, therefore, also barred of right of dower therein. Sutton v. Askew, 66 N. C., 172. In holding that the plaintiff could not x-e-cover, there was no error.

No error.