Harvey v. . Smith

42 N.C. 182

• Court: Supreme Court of North Carolina
• Decided: June 5, 1851
• Status: Published

Opinion

Pearson, J.

What disposition is made of the profits of this half of the estate, until Mrs. Harvey becomes a widow ? Is the fund to be increased by accumulation ? Are the children of Mrs Steptoe, now living, to have the profits ? or are the profits undisposed of — “ casus omissus ?” There is no direction for an accumulation, and nothing from which it can be implied. The children of Mrs. Steptoe, who may be living at the death of Mrs. Harvey, are then to take the principal fund ; but there is nothing to show, that the children, now living, are to take the profits. We are, therefore, forced to the conclusion, that the profits are undisposed of, and, of course, belong to the next of kin of the testatrix. It must be declared to be the opinion of this Court, that the plaintiffs are entitled to one half of the said profits, until Mrs. Harvey becomes a widow or dies. ..

It may be, that, if she “ becomes a widow and has not a sufficiency for her support,” she may be entitled to call for all'of the profits or the one half of the estate. That depends upon circumstances, and is not now before us.

Pee Cukiam Decree accordingly.