J. Spillar Cutlar's Administrators v. James Cutlar's Executors

Superior Court of North Carolina

J. Spillar Cutlar's Administrators v. James Cutlar's Executors

3 N.C. 154

DecidedJuly 5, 1801

StatusPublished

This text of 3 N.C. 154 (J. Spillar Cutlar's Administrators v. James Cutlar's Executors) is published on Counsel Stack Legal Research, covering Superior 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

J. Spillar Cutlar's Administrators v. James Cutlar's Executors, 3 N.C. 154 (N.C. Ct. App. 1801).

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Opinion

Hall, Judge.

Evidence may be given to prove that the deed last mentioned was really delivered on the Stb, and before the ■deed to the daughter and her son. The date is not of the essence of the deed, and it is not sound, as argued, that Cutlar being a pavty to the deed and now a plaintiff is therefore estopped to say the contrary of that which appeared on his own deed.— Vide 2 Rep. 4-Dy. 307—A. pl. 67—Comber 83.

As to the other points, he said, that heirs of the body when spoken of chattels, were in some cases descriptive of the person, to take, and were words of purchase, not of limitation ; but the word heirs simply was always a word of limitation, and operated to give the whole property to the survivor, and is here tantamount to executors. There is no difference between saving remainder in fee to the heirs of the survivor, and remainder to the heirs of the survivor. The absolute property was in suspense rill th" death of one, but upon that death the absolute property immediately vested in the survivor, and was n® *155 'long?? contingent, and consequently his administrator ought to secover.

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Hall, Judge.

Evidence may be given to prove that the deed last mentioned was really delivered on the Stb, and before the ■deed to the daughter and her son. The date is not of the essence of the deed, and it is not sound, as argued, that Cutlar being a pavty to the deed and now a plaintiff is therefore estopped to say the contrary of that which appeared on his own deed.— Vide 2 Rep. 4-Dy. 307—A. pl. 67—Comber 83.

As to the other points, he said, that heirs of the body when spoken of chattels, were in some cases descriptive of the person, to take, and were words of purchase, not of limitation ; but the word heirs simply was always a word of limitation, and operated to give the whole property to the survivor, and is here tantamount to executors. There is no difference between saving remainder in fee to the heirs of the survivor, and remainder to the heirs of the survivor. The absolute property was in suspense rill th" death of one, but upon that death the absolute property immediately vested in the survivor, and was n® *155 'long?? contingent, and consequently his administrator ought to secover.

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Bluebook (online)

3 N.C. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-spillar-cutlars-administrators-v-james-cutlars-executors-ncsuperct-1801.