Tyson v. Tyson

100 N.C. 360

Opinion

Smith, C. J.,

(after stating the facts). The appellants have no interest in the solution of the question referable to the pecuniary bequests “to the bodily heirs of said Emeline J,” nor would we be disposed to differ with the Judge in his rulings upon this matter, if it were before us.

The Judge very properly declined to advise as to the devise of the land mentioned in the 10th item, and the effect of the words used in connection, “ in consideration of her taking care of her mother,” further than to say, it was not the duty of the executors, under the 11th residuary clause, to sell the land given to Joanna, and hér bodily heirs after her death, in the clause immediately preceding. Whether the devise failed because of the death of the mother before that of the father, the testator, was not an inquiry which the executors could make of the Court, under the established-rules of practice. Tayloe v. Bond, Busb. Eq., 15; Little v. Thorne, 93 N. C., 69; Cozart v. Lyon, 91 N. C., 282, and other cases, and for the simple reason that a question of law is raised among heirs and devisees, and. must be settled in an action between the contending claimants to the land. The executors have nothing to do with this contention, and, as such, have no duty to perform, unless it devolves upon them, in one view of the case, to make sale.; and this inquiry is answered.

Our appellate jurisdiction is limited to the correction of errors in the rulings below, and when there has been no ruling, that jurisdiction cannot be invoked or exercised.

Without intimation of an opinion upon a point not before us, it is not improper to refer to the recent case of Burleyson v. Whitley, reported in 97th N. C., 295.

There is no error, and the judgment is affirmed.

No error. Affirmed.