Bell v. Dozier

• Court: North Carolina Supreme Court
• Writing for the Court: HENDERSON
• Citation: Bell v. Dozier , 12 N.C. 333 (N.C. 1827)
• Decision Date: 31 December 1827
• Parties: TULLY BELL et al. v. JOSEPH DOZIER et ux.

12 N.C. 333

TULLY BELL et al.

v.JOSEPH DOZIER et ux.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1827.

From Currituck.

1. In the descent of acquired estates the only qualification necessary to a collateral is that he be the nearest relation of the person last seized. In descended estates he must be of the blood of the first purchaser.

2. Where an estate was purchased by the father, and descended from him, and the propositus left a mother, a maternal half-brother, paternal uncles of the half-blood, and other more distant paternal collaterals, it teas held that the proviso in the 6th canon of descents (act of 1808) applies to cases where a surviving brother or sister cannot inherit, as well as to cases where none are left, and therefore that a life estate in the lands descended to the mother and the fee to the paternal uncles of the half-blood.

THIS was an action of waste, tried before, Nash, J., at Spring Term, 1826, of the court below, when a verdict was taken and damages assessed for the plaintiffs, subject to the opinion of the court as to the right to sustain the action upon the following case: In 1813, Peter Barnard died intestate, seized of the lands on which the waste was committed, leaving two children, Elizabeth and Jesse, and a widow; and afterwards, in the same year, Elizabeth died intestate and without issue. The widow had dower assigned her in this land, and in 1813 intermarried with the defendant Joseph Dozier, by whom, in thesucceeding year, she had issue which is still alive; and afterwards Jesse Barnard died intestate and without issue. The lands were purchased by Peter Barnard, and the plaintiffs are his maternal half-brother and sisters, and nearest of blood to him; but he had also collateral relations, the descendants of his father's nephews and nieces.

The presiding judge being of opinion for the plaintiffs, gave them judgment for treble the damages assessed by the jury, and the defendants appealed.

HENDERSON, J. Peter Barnard, the first purchaser of the lands in question, died seized thereof in 1812, intestate, leaving two children, Elizabeth and Jesse, and a widow, the mother of Jesse, I presume, although it is not so stated in the case. The locus in quo was assigned to the widow as her dower. Elizabeth died intestate, without issue, in the same year. In 1813 the widow married Dozier, one of the defendants; and in 1814 had

a child, which is still alive. The plaintiffs are the maternal half-brothers and sisters of Peter Barnard, and the nearest of kin to Jesse, except the child before mentioned. Peter Barnard's father left nephews and nieces, whose descendants are still alive.

The question presented is, On whom did the inheritance descend upon the death of Jesse ?

The second canon of descents, in the act upon the subject, passed in 1808, calls the females equally with the males to the succession. It thereby abolishes the priority of the male over the female line, and places them upon a perfect equality, both as to collateral and lineal descents. The express declaration, whether of the paternal or maternal line, to be found at the close of the fifth canon, was therefore unnecessary. Its omission in the fourth canon, under which this case falls, willnot prejudice the maternal line. The only qualification required is that it be the blood of the first purchaser. I also think that the provision made in the sixth canon, declaring that the collateral relations of the half blood shall inherit, equally to the whole blood, was also unnecessary, it being an entire enactment upon the subject, and the previous provisions embracing them; the only qualification required being that in the case of an estate which has descended, such collateral relations should be of the blood of the first purchaser; for we shall presently see that the words "such ancestor," in the close of the fourth canon, must be stricken out, and in lieu thereof the words "first purchaser" inserted. As we...