Devereux v. . Dunn

Supreme Court of North Carolina

Devereux v. . Dunn

37 N.C. 206

DecidedJune 5, 1842

StatusPublished

This text of 37 N.C. 206 (Devereux v. . Dunn) 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

Devereux v. . Dunn, 37 N.C. 206 (N.C. 1842).

Pincite

Opinion

*209 Daniel. J.

The bill is brought for a specific execution of an agreement, entered into bv the defendant and Sarah" Sar ah E. Devereux, that the defendant would purchase the land, slaves and farming stock therein mentioned. The defendant is willing to complete the purchase, if he can get a good title to the whole property. The complainants’ title to convey the land rests upon the last will and testament of George P. Devereux, the late husband of the plaintiff Sarah É. Devereux, and father of the other plaintiffs. The will is made a part of the case; and, in construing it, vve will say, Jirst, that on the birth of the daughter Georgiana, the too-ther and her two daughters were devisees and legatees as tenants in common in fee; subject, at least, as between the mother and her daughter Elizabeth, to an executory devise over to the survivor on the death of either of them. Whether the words “and to the survivor on the death of either of them” extends to the share of Georgiana, it is not now necessary to declare. Sufficient it is to say, that Mrs. Dev-ereux has not, under the words contained in this part of the will, “to be equal and joint heirs to sell and dispose of the same,” power to make an absolute title in fee, or such a title ns this court will compel a defendant to take. The two infant daughters have interests in the estate, and any deed from them would be void or voidable. Secondly; the testator, after making his wife sole executrix, speaks as follows: “all my estate, real and personal, being at her (his wife’s) absolute disposal during the minority of my said child or children, she having the sole care and guardianship of said children.” We are unable to see from this clause any power given to Mrs. Devereux to convey for a longer period than her children respectively remain under the age of twenty-one years. The plaintiffs in no way can malee a good and absolute title in fee to the land, so far as we caa discover. The bill must be dismissed with costs.

Per Curiam, Bill dismissed with costs.

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*209 Daniel. J.

The bill is brought for a specific execution of an agreement, entered into bv the defendant and Sarah" Sar ah E. Devereux, that the defendant would purchase the land, slaves and farming stock therein mentioned. The defendant is willing to complete the purchase, if he can get a good title to the whole property. The complainants’ title to convey the land rests upon the last will and testament of George P. Devereux, the late husband of the plaintiff Sarah É. Devereux, and father of the other plaintiffs. The will is made a part of the case; and, in construing it, vve will say, Jirst, that on the birth of the daughter Georgiana, the too-ther and her two daughters were devisees and legatees as tenants in common in fee; subject, at least, as between the mother and her daughter Elizabeth, to an executory devise over to the survivor on the death of either of them. Whether the words “and to the survivor on the death of either of them” extends to the share of Georgiana, it is not now necessary to declare. Sufficient it is to say, that Mrs. Dev-ereux has not, under the words contained in this part of the will, “to be equal and joint heirs to sell and dispose of the same,” power to make an absolute title in fee, or such a title ns this court will compel a defendant to take. The two infant daughters have interests in the estate, and any deed from them would be void or voidable. Secondly; the testator, after making his wife sole executrix, speaks as follows: “all my estate, real and personal, being at her (his wife’s) absolute disposal during the minority of my said child or children, she having the sole care and guardianship of said children.” We are unable to see from this clause any power given to Mrs. Devereux to convey for a longer period than her children respectively remain under the age of twenty-one years. The plaintiffs in no way can malee a good and absolute title in fee to the land, so far as we caa discover. The bill must be dismissed with costs.

Per Curiam, Bill dismissed with costs.

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Bluebook (online)

37 N.C. 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devereux-v-dunn-nc-1842.