Ellis v. Harrison.

53 S.E. 299, 140 N.C. 444, 1906 N.C. LEXIS 21

• Court: Supreme Court of North Carolina
• Decided: March 6, 1906
• Status: Published

Opinion

Hoke, J.,

after stating the case: It will be noted that the fund consists solely of personalty and that the claimants at the time of the intestate’s death were and are now all in equal degree — the next of k'in of said intestate. In such case our statute of distributions (Revisal, section 132), and the uniform construction put upon it by our court require that the fund shall be distributed per capita. Skinner v. Wynne, 55 N. C., 41. Bepresentation in this kind of property, when allowed, is only resorted to when it is necessary to bring the claimants to equality of position as next of kin. It is otherwise as to realty. Clement v. Cauble, 55 N. C., 82; Cromartie v. Kemp, 66 N. C., 382. The decisions cited in support of the distribution per stirpes are all cases involving the division of real estate. The case of Crump v. Faucett, 70 N. C., 346, is in apparent conflict with our present decision, but an examination of the record discloses that the subject matter of litigation in that case was real estate, and the opinion throughout shows that the^learned judge was construing, and only intended to construe, the statute of descents.

There is no error and the judgment below is

Affirmed.