Holding v. Holding

• Decision Date: 31 December 1804
• Citation: 5 N.C. 9
• Court: North Carolina Supreme Court
• Parties: SAMUEL HOLDING, EXECUTOR, ETC., AND OTHERS, v. FREDERIC HOLDING.

5 N.C. 9

SAMUEL HOLDING, EXECUTOR, ETC., AND OTHERS,

v.FREDERIC HOLDING.

COURT OF CONFERENCE OF NORTH CAROLINA

DECEMBER TERM, 1804.

Where a bill was filed to enjoin a judgment of the County Court in a cause in which equity jurisdiction had been conferred upon it by act of Assembly, it was dismissed because the County Court had jurisdiction of the question, and there was no allegation of fraud, surprise or mistake.

IN EQUITY. Samuel Holding, Sr., the testator, on 9 May, 1797, made and published his last will and testament, and therein, amongst other things, devised a tract of land to the defendant, and other tracts to the complainants, Arthur and John Holding, his sons; and directed that the several parcels of land thereby given to his three sons, Frederic, Arthur and John Holding, should be valued by good men, as woodland unimproved, and that the valuation so made should be kept by them until after the death of his wife. He further directed that after the death of his wife his executors should sell, at twelve months' credit, all his personal estate not before given away, and distribute the money in the following manner, that is to say: Pay the legacies named in the will, and after consulting the appraised value of the lands thereby given to his said three sons, pay unto him or them, as the case might be, such sum or sums of money so as to make each lot of equal value.

The testator, some time after the execution of the will, with an intention of passing to the said Frederic, immediately, all the interest and benefit which he intended him totake under the will, and having in the interim advanced considerable sums of money to him, by deed, in consideration

of affection and twenty shillings, conveyed the lands mentioned in the will, and ten acres more, to Frederic, in fee simple, "as a portion of testator's estate."

The bill charges that the said conveyance was, at the time of its execution, understood and intended to be in full and complete satisfaction of all benefit intended to the said Frederic by the will; and that it was understood by the parties that the said Frederic was to relinquish all further claim on his father's estate by the will or otherwise.

The testator died, his will was proved; the widow died, and the executor sold the personal property bequeathed to her, as directed by the will. The present defendant, some years afterwards, preferred a petition to the County Court of Wake, praying a decree for the deficiency in value between the land...