Barringer v. Cowan

• Court: North Carolina Supreme Court
• Writing for the Court: BATTLE
• Citation: Barringer v. Cowan, 2 Jones 436, 55 N.C. 436 (N.C. 1856)
• Decision Date: 30 June 1856
• Parties: RUFUS BARRINGER, ADM'R., v. THOS. COWAN and others.

2 Jones Eq. 436

55 N.C. 436

RUFUS BARRINGER, ADM'R.,

v.THOS. COWAN and others.

Supreme Court of North Carolina.

June Term, 1856.

A and B were the only children of a deceased sister of the testator; to A he gave one thousand dollars, and to the children of B the like sum; he then orders one-third of a residuary fund to be divided between A and the children of B, and the other two-thirds to go to the children of C and D, and then adds, “the part that shall fall to each family, to be divided share and share alike;” it was held to be the testator's intention to give A one-half of a third of the fund.

Bequests to colleges and churches are liable to pay tax under the Revenue Act. Rev. Code, ch. 99, sec. 7.

CAUSE removed from the Court of Equity of Rowan County.

The bill was filed by the plaintiff, as the administrator with the will annexed of Alexander W. Brandon, asking the advice and direction of the Court upon certain questions arising out of the construction of the will.

Having in previous clauses of the will given to Thomas Cowan one Thousand dollars, and to the children of James L. Cowan one thousand dollars, the provision, on which the chief difficulty arises, is as follows:

“If my estate should amount to more than the sums of money which I have given and devised in the above legacies to the several named persons, in that event, the balance that shall remain after paying all the legacies, shall be divided into three shares or parts, and that Thomas Cowan, and the children of James L. Cowan, have one part or share, and the children of George Locke one part or share, and the children of John S. Brandon, one part or share. The part or share that shall fall to each family, is to be divided, share and share alike.”

Thomas Cowan and James L. Cowan, mentioned in this extract, are the only surviving children of a deceased sister of the testator. James L. Cowan, at the death of the testator, had three children, and his wife was at that time pregnant with another, which afterwards was born, and is still living.

The bill sets forth, that Thomas Cowan claims one-half of the share or part allotted to him and the children of James L. Cowan; whereas, the children insist, that he is only entitled to come in per capita with them, viz., to take one-fifth.

Another question arising upon this clause is, whether the child of James L. Cowan, that was in ventre sa mere at the testator's death, is entitled to come in for a share with the previously born children.

Among other bequests, is a pecuniary legacy to the trustees of Davidson College, and another to the elders of Thyatira Church, in Rowan county, and a question is raised, whether these legacies are liable for a tax under the Revenue law of the State?

James L. Cowan's children, Thomas Cowan, the trustees of Davidson College, the elders of Thyatira Church, and all the legatees of the testator, are made parties; and besides the instructions asked as above stated, the plaintiff prays that an account may be taken of his whole administration, and that the same be closed and settled by a decree of this Court.

There were answers, insisting upon the interests of the several parties above suggested, but in no wise varying the statement of facts as set forth in the bill.

No counsel appeared for the...