Brinson v. Wharton

• Court: North Carolina Supreme Court
• Writing for the Court: NASH
• Citation: Brinson v. Wharton, 43 N.C. 80, 8 Ired. Eq. 80 (N.C. 1851)
• Decision Date: 31 December 1851
• Parties: HIRAM BRINSON, ADM'R . v. DAVID B. WHARTON et al.

8 Ired.Eq. 80

43 N.C. 80

HIRAM BRINSON, ADM'R .

v.DAVID B. WHARTON et al.

Supreme Court of North Carolina.

December Term, 1851.

A testator devised and bequeathed to his wife all the residue of his estate, “during her widowhood, and when she marries, then that all the remaining property, both real and personal, shall be equally divided between his children and beloved wife, share and share alike;” Held, that this was a vested remainder in the children, and, that, upon the death of the widow, without having married, the representatives of the children, who had died in her lifetime, were entitled to share equally with the surviving children.

Cause removed from the Court of Equity of Jones county, at the Fall Term, 1851.

The facts are stated in the opinion delivered in this Court.

J. H. Bryan and Green, for the plaintiffs .

J. W. Bryan, for the defendants .

NASH, J.

Abraham Wharton died in 1809, leaving surviving him, his widow, Sarah Wharton, and five children, namely, David and Elizabeth, the wife of John Dudley, who are defendants: and John, Sarah, and Cassandra, all of whom died intestate, and without issue, in the lifetime of the widow. The plaintiff, Brinson, is the administrator of John and Sarah; and the plaintiff, Mason, is the administrator of Cassandra. Abraham Wharton left a nuncupative will, which was duly proven; and the widow, Sarah Wharton, qualified as executrix, took into her possession the personal estate, consisting of slaves, stock, &c., and kept the slaves and some few articles of the other property, until her death.

The will contains this clause: “And then his will and desire was, that his beloved wife, Sarah Wharton, should keep his children, and all the residue of his property, both real and personal, during her widowhood: and when the said Sarah Wharton marries, then the will and desire of the said ...