Beach v. . Gladstone

178 S.E. 546, 207 N.C. 876, 1935 N.C. LEXIS 298

Opinion

Pee CtjRIAm.

The defendant in her brief says: “We have been unable to find that this Court has heretofore passed upon the question involved here, and it would seem that it is of first impression. We respectfully submit, however, that, for the reasons assigned, the learned judge who heard the case below committed error in adjudging that the bequest did not lapse, and that judgment should have been entered, adjudging that the bequest passed under the residuary clause in the will, and therefore we insist that the judge below should be reversed.”

The Court construed C. S., 4166, in Farnell v. Dongan, ante, 611, opinion filed 23 January, 1935. It is there said: “The statute is not ambiguous. The intention of the General Assembly in its enactment is expressed in language which leaves no room for judicial construction. The distinction found in the common law between real and personal property, for purposes of devolution, is recognized and preserved. This appears from the use of the words ‘devise’ and ‘legacy,’ ‘heir at law’ and ‘distributee.’ Whether this distinction should be abandoned in the law of this State, as having no sound basis under modern social and economic conditions, is a matter for the General Assembly and not this Court to determine.”

In construing C. S., 4166, we do not think it should be construed with C. S., 4168. Neither section is ambiguous and they are not interrelated.

The judgment of the court below is

Affirmed.