Fishel v. Hage , 38 N.C. 510 ( 1845 )

Ruffin, C., J.

We need not advert to the terms in which the leasehold is given to the wife in the codicil; for if it be admitted that she had thereby only a life estate, with a general power of appointment, which failed because she did not choose to execute it; yet the plaintiffs have no right to the premises, as the next of kin, but they vested in the wife by reason of the universal gift in the will. This property was but a chattel, and therefore passed by the will, though acquired afterwards, and although it may have turned out, in the event that has happened, that it is not well disposed of in the codicil, yet it is by the will itself, as such is the settled operation of a general residuary clause. In this will, the gifts to the wife are as universal and unlimited as possible. As respects, therefore, those premises, the bill must be dismissed, and as that is the only real subject of controversy, it must be dismissed with costs. We presume the small pecuniary legacies to the several plaintiffs will be paid on application. If not, they may move for a reference to take an account of the estate, so as to shew assets for their satisfaction.

Per, Curiam, Decree accbrdingly.