State Ex Rel. Lister v. Skinner

26 N.C. 57

• Court: Supreme Court of North Carolina
• Decided: December 5, 1843
• Status: Published

Opinion

DaNIel, J.

Charles Wooton, the testator, died in the year 1825, after making his will, which contained the clause mentioned in the case agreed. Did that clause give to Joshua Wooton, the son of the testator, the absolute and entire estate in the negroes mentioned therein ? There can be no doubt,, that the words in the clause would create an estate tail m lands devised ; and the general rule is, that where-ever words in a will would create an estate tail in lands devised, the same words in a bequest of chattels, will carry the absolute estate. But an exception to this rule is, where there are words superadded to those, which, standing by themselves, would create an estate tail in land, which super-added words would shew and explain that the testator did not intend to create an estate tail in the chattels. Swain v Rascoe, 3 Iredell, 200. But in this will, there are no such super-added, explanatory words to the bequest of the slaves. “To him (Joshua Wooton) and his heirs lawfully begotten of his body, bat that if he, Joshua, should die without lawful heirs, then over, &c.” We are therefore of opinion, that the judgment given by his Honor was correct, and the same must be affirmed.

Per Curiam. Judgment affirmed.