Carroll v. . Hancock

Supreme Court of North Carolina

Carroll v. . Hancock

48 N.C. 471

CourtSupreme Court of North Carolina

DecidedJune 5, 1856

StatusPublished

Cited by3 cases

This text of 48 N.C. 471 (Carroll v. . Hancock) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carroll v. . Hancock, 48 N.C. 471 (N.C. 1856).

Pincite

Opinion

Pearson, J.

A negro woman is bequeathed to A for life, and then to B, and her heirs for forever. The “ increase” of the woman, “ if she has any,” is bequeathed to the daughters of B, after her death. The woman has six children after the death of the testator *, A dies, and B dies, leaving her surviving six daughters; one of them dies, her administrator claims *473 to be tenant in common with, the other five, and prays for partition.

There can be no doubt that the testator, after giying the woman absolutely to B, had a right to dispose of her children then unborn. Pearson v. Taylor, 4 Dev. and Bat. 60; Nelson v. Nelson, 6 Ire. Eq. 417.

The suggestion, that “increase” has a broader meaning than children, and includes descendants to any indefinite future period, and so the limitation over is void to prevent a perpetuity, is not well founded. What negroes the daughters of B are to take, will be determined at her death, or at all events, at the death of the negro woman; so the limitation over must take effect within a life, or lives in being.

There is also no doubt that, at the death of B, the legacy vested in her daughters then living; consequently, upon the death of one of them, her estate was transmitted to her personal representative. It is well settled, that where a life-estate is given with a limitation over to a class, the matter is kept open, until the termination of the particular estate, so as to include as many of the objects of the testator’s bounty as possible. This can be done; because the tenant for life fills the ownership, and there is no necessity for ascertaining who constitute the class, until they are called on to take the ownership. It is otherwise when there is no particular estate, for then the call is made at the death of the testator, and those take who then answer the description.

The daughters being then tenants in common, the bill of sale, taken by the surviving five from the husband of B, did not have the effect of making the possession adverse.

Per Curiam.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Pearson, J.

A negro woman is bequeathed to A for life, and then to B, and her heirs for forever. The “ increase” of the woman, “ if she has any,” is bequeathed to the daughters of B, after her death. The woman has six children after the death of the testator *, A dies, and B dies, leaving her surviving six daughters; one of them dies, her administrator claims *473 to be tenant in common with, the other five, and prays for partition.

There can be no doubt that the testator, after giying the woman absolutely to B, had a right to dispose of her children then unborn. Pearson v. Taylor, 4 Dev. and Bat. 60; Nelson v. Nelson, 6 Ire. Eq. 417.

The suggestion, that “increase” has a broader meaning than children, and includes descendants to any indefinite future period, and so the limitation over is void to prevent a perpetuity, is not well founded. What negroes the daughters of B are to take, will be determined at her death, or at all events, at the death of the negro woman; so the limitation over must take effect within a life, or lives in being.

There is also no doubt that, at the death of B, the legacy vested in her daughters then living; consequently, upon the death of one of them, her estate was transmitted to her personal representative. It is well settled, that where a life-estate is given with a limitation over to a class, the matter is kept open, until the termination of the particular estate, so as to include as many of the objects of the testator’s bounty as possible. This can be done; because the tenant for life fills the ownership, and there is no necessity for ascertaining who constitute the class, until they are called on to take the ownership. It is otherwise when there is no particular estate, for then the call is made at the death of the testator, and those take who then answer the description.

The daughters being then tenants in common, the bill of sale, taken by the surviving five from the husband of B, did not have the effect of making the possession adverse.

Per Curiam.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

48 N.C. 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-hancock-nc-1856.

Opinion

Related

Cite This Page — Counsel Stack