Chambers v. Bumpass

• Decision Date: 31 January 1875
• Citation: 72 N.C. 429
• Court: North Carolina Supreme Court
• Parties: E. T. CHAMBERS v. H. L. BUMPASS, Ex'r.

72 N.C. 429

E. T. CHAMBERS

v.H. L. BUMPASS, Ex'r.

Supreme Court of North Carolina.

January Term, 1875.

A testator in his will leaves to E. T. C. “All the residue of my estate both real and personal, during her natural life or single state:” Held, that E. T. C. was entitled to the use and enjoyment of the specific property so given, and that the Executor had no right to intermeddle therewith, except to prevent a loss or unnecessary waste of the same.

CIVIL ACTION, to obtain a construction of a will, submitted without suit by the parties to the controversy, and heard by Tourgee, J., at chambers in PERSON county, July 25th, 1874, upon the following??

CASE AGREED.

I. John A. Bailey died in Person county aforesaid, on the 30th day of May, 1874, leaving the following last will and testament, to-wit:

“NORTH CAROLINA, Person County.

I, John A. Bailey, of the county and State aforesaid, being of sound mind and memory, but of feeble health, and know not how long my earthly existence can last, do make and declare this, my last will and testament:

1. It is my desire that my body shall be decently cared for, and buried by the side of my mother.

2. I desire my executor to pay all my just debts, burial and funeral expenses.

3. I leave to Elisabeth T. Chambers, my dear and near friend, all the residue of my estate, both real and personal, during her natural life or single state, and at the termination of either her death or marriage, I then desire all my property to be equally divided between my sister, Betsy Drumwright, W. H. Bailey, Thomas Bailey, and Nancy Harris's living children, share and share alike, except I only mean to give my sister Nancy Harri??s children one-fourth of my estate, it being their mother's share.

4. I want my dwelling house finished and paid for out of money I have on hand, and also the garden and yard paled in with the lumber I leave on hand; paid for as the house.

5. I desire my executor to see that my property is not wasted before the termination of the lease, so that my dear brothers and sisters may realize its value.

6. Should either my sister, Betsy Drumwright, Wm. H. Bailey, Thomas Bailey, all or either of them, die before the termination of the lease to Elisabeth T. Chambers, then I want their lawful heirs to share their part of my estate, share and share alike.

7. I leave my worthy friend, Horace D. Bumpass, executor to this, my last will and testament, and request him to execute the same. As witness my hand,” &c.

II. That the said will has been duly proved in the Probate Court of Person county, and the defendant has qualified as executor thereto.

III. That Elizabeth T. Chambers, the plaintiff, is the identical person mentioned in the third paragraph of said will.

IV. That the testator, at the time of his death, was seized and possessed of a tract of land in Person county, and possessed of personal property consistiug of money, cows,

a horse, hogs, sheep, bonds, accounts, household and kitchen furniture.

V. That the defendant threatens to, and will, sell the aforesaid personal property, unless restrained therefrom by an order of this Court.

Wherefore, the parties pray the judgment of this Court, whether under the will aforesaid, the defendant has the right to sell the personal property aforesaid, unless it should become necessary to do so, to pay the debts of the testator.

His Honor thereupon gave the following judgment:

“Having considered the matters set forth in the case submitted, I am of the opinion that the defendant, as executor of the will of...