Davis v. . Shanks , 9 N.C. 117 ( 1822 )

Hannah and her increase are to be equally divided between (119) Joseph and Mary after the death of the widow. The rest of the estate is given to his wife during her widowhood, but if she marries the estate is to be sold, and two-thirds are to be divided between his son and daughter; the other third is to go to his wife during life, and at her death to be divided between his son and daughter, but if they should die before they came of age, then to his wife. I cannot see upon what principles this bill can be sustained; for if it was a cross-remainder, then upon the death of the son under twenty-one it vested in the daughter; if it was not, it went immediately to the testator's wife. 4 Cruise, 414 et seq.; T. Ray, 452; 1 Show., 135; Dyer, 303, 330; Cro. Jac., 448; Saund., 104. These authorities I cite from Cruise; they are all to be found in Bacon, "Devises G." The death of the son without issue does away with the necessity of considering whether, if there had been issue, the court would not have supplied these words, and without issue; for I should be very unwilling to take the property from the issue of the son and give it to either the sister or mother by implication, for it is by implication alone that the sister takes, and by implication also that the mother can take before the death of both under twenty-one. Stephenson v.Jacock, 8 N.C. 285. It has been said that Hannah and her issue, who are the subject of this suit, are not within the operation of the clause in the will now under consideration; that it relates entirely to the perishable property in the clause immediately preceding it. But I think that the wordstheir estate include everything given to them in the will. They are sufficiently broad to embrace it, and there is nothing to restrict them. I should think it was the plain and obvious meaning of the testator to subject all the property given to them by the will to the ulterior limitations.

PER CURIAM. Bill dismissed with costs.

Cited: Picot v. Armistead, 37 N.C. 232.

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