McBee and Others, Ex Parte

Supreme Court of North Carolina

McBee and Others, Ex Parte

63 N.C. 332

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1869

StatusPublished

Cited by5 cases

This text of 63 N.C. 332 (McBee and Others, Ex Parte) 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

McBee and Others, Ex Parte, 63 N.C. 332 (N.C. 1869).

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Opinion

Reade, J.

The first exception is sustained. The grant to W. J. Stowe, “ To have and to hold said land to him, his heirs, executors and administrators, for and during the period of his natural life; at his d§ath, to go to the heirs of his body, to them, their heirs and assigns forever, ” vests in them an estate tail; and that, by our statute is changed into a fee simple. F olk v. Whitley, 8 Ire. 133. The limitation over, “And in default of heirs of his body, living at his death, to go to L. J. Pegram, and the heirs of her body, ” is void.

The second exception is overruled. The paper writing in Arkansas was never operative at law, because it had no seal, and was never delivered. Baldwin v. Maultsby, 5 Ire. 505. Now can it be set up as an imperfectly executed instrument, because of the absence of all evidence, except the mere existence of the paper in the possession of the grantor, as to his purpose in regard thereto, and for want of such a meritorious •consideration as is required in such cases. Adams’ Eq. 98. It is true that the grantee is a son of the grantor, and such a relationship is ordinarily deemed a meritorious consideration, but he is not unprovided for, but was the recipient of the testator’s bounty to a considerable amount, and there are others who would be injuriously affected, who are in the same degree of relationship, and, so far as it appears to us, equally meritorious objects of the grantor’s bounty. Garner v. Garner, Bus. Eq. 1.

The third exception is overruled. The share of Eli Hoyle in the King’s Mountain tract, under the provision in his will, became personalty, and passes as such to the four children to whom it is bequeathed. And the same is true of A. Hoyle’s interest in said land, and the same passes into the hands of his executors, for the benefit of .the persons to whom it is *335 bequeathed. But it will not be liable to the debts of the testator, if any debts there be, until the personal property proper is exhausted. Newby v. Skinner, 1 D. & B. Eq. 487.

Whether under the new Constitution, securing to wives all the property which they may acquire, this will be a matter of any moment to Barrett, the party taking the last exception, is not a question before us. This opinion will be certified, <&c. The cost will be paid out of the common fund.

Per Curiam. Decree accordingly.

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Reade, J.

The first exception is sustained. The grant to W. J. Stowe, “ To have and to hold said land to him, his heirs, executors and administrators, for and during the period of his natural life; at his d§ath, to go to the heirs of his body, to them, their heirs and assigns forever, ” vests in them an estate tail; and that, by our statute is changed into a fee simple. F olk v. Whitley, 8 Ire. 133. The limitation over, “And in default of heirs of his body, living at his death, to go to L. J. Pegram, and the heirs of her body, ” is void.

The second exception is overruled. The paper writing in Arkansas was never operative at law, because it had no seal, and was never delivered. Baldwin v. Maultsby, 5 Ire. 505. Now can it be set up as an imperfectly executed instrument, because of the absence of all evidence, except the mere existence of the paper in the possession of the grantor, as to his purpose in regard thereto, and for want of such a meritorious •consideration as is required in such cases. Adams’ Eq. 98. It is true that the grantee is a son of the grantor, and such a relationship is ordinarily deemed a meritorious consideration, but he is not unprovided for, but was the recipient of the testator’s bounty to a considerable amount, and there are others who would be injuriously affected, who are in the same degree of relationship, and, so far as it appears to us, equally meritorious objects of the grantor’s bounty. Garner v. Garner, Bus. Eq. 1.

The third exception is overruled. The share of Eli Hoyle in the King’s Mountain tract, under the provision in his will, became personalty, and passes as such to the four children to whom it is bequeathed. And the same is true of A. Hoyle’s interest in said land, and the same passes into the hands of his executors, for the benefit of .the persons to whom it is *335 bequeathed. But it will not be liable to the debts of the testator, if any debts there be, until the personal property proper is exhausted. Newby v. Skinner, 1 D. & B. Eq. 487.

Whether under the new Constitution, securing to wives all the property which they may acquire, this will be a matter of any moment to Barrett, the party taking the last exception, is not a question before us. This opinion will be certified, <&c. The cost will be paid out of the common fund.

Per Curiam. Decree accordingly.

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63 N.C. 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbee-and-others-ex-parte-nc-1869.

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