Murray v. . Oliver

41 N.C. 55

• Court: Supreme Court of North Carolina
• Decided: June 5, 1849
• Status: Published

Opinion

Pearson, J.

Whatever might have been the construction of the residuary clause, had it stood upon the original publication in 1827, it is put beyond doubt, by the republication in May 1828, by the codicil of that date. For, by the republication, the will is made to speak and operate from that time. The act of 1827, ch. 7 had then gone into effect, and gave efficacy to the limitation over. Whatever doubt was once entertained, it is now unquestionably settled, that adding a codicil is a republication,. and the codicil brings the will to it, and make it a will from the date of the codicil. Much more must it have that operation in putting a benignant sense on the words of the will, so as to make its provisions, in reference to personal property, take effect.

Therefore, it must be declared, that, upon the death of Robert Oliver, without having had a child, the slaves, allotted to him, and their increase, under the will of his father, belonged to his surviving brothers, and the present representatives of Reuben, who died leaving children. There must be a decree for a division accordingly, and for an account of the property, since the death of Robert.

Per Curiam.

Decree accordingly.