Cutlar v. Hanover

• Court: North Carolina Supreme Court
• Writing for the Court: TAYLOR
• Citation: Cutlar v. Hanover, 9 N.C. 324 (N.C. 1823)
• Decision Date: 30 June 1823
• Parties: FREDERICK J. CUTLAR ET AL. v. ANNA E. CUTLAR.—From New Hanover.

9 N.C. 324

FREDERICK J. CUTLAR ET AL.

v.ANNA E. CUTLAR.—From New Hanover.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1823

If a man purchase land and die without issue, it descends for the present upon the brothers and sisters then in being; but if any are subsequently born, they become equally entitled; and the same law must prevail relative to half-blood, where, under the laws of this State, they are entitled to inherit.

PETITION for partition, filed by Frederick J. Cutlar, Jane Cutlar, and Euphemia Cutlar, setting forth that in 1790 their father, Roger Cutlar, intermarried with Ellen Spillar, by whom he had issue, James Spillar Cutlar; that Ellen, wife of said Roger, died in 1794; that James Spillar Cutlar acquired by purchase certain lands, and died intestate and without issue in August, 1797; that Roger Cutlar, in 1796, intermarried with Nancy Jones, mother of the petitioners; that the said Roger and Nancy Cutlar, in January, 1797, had issueborn, a daughter, Anna E. Cutlar. That after the death of James Spillar Cutlar the petitioners were born, Jane in 1798, Frederick in 1801, and Euphemia in 1803. The petitioners claimed as coheirs at law with Anna E. Cutlar of their half brother James Spillar Cutlar, and claimed each one-fourth part of the real estate of which James died seized and possessed.

To this petition there was in the court below a demurrer, which was sustained, and plaintiffs appealed.

TAYLOR, C. J. The petitioners are unquestionably entitled each to a fourth part of the estate of which J. S. Cutlar died seized; for, notwithstanding the great and radical changes in the law of descent, which are introduced by our statute, the principle relative to posthumous and after-born children remains unaltered and adapts itself to the course of descent instituted here. According to the British law, if lands are given to a son, who dies leaving a sister his heir, if the parents have at any distance of time afterwards another son, this son shall divest the descent upon the sister and take the estate as heir to his brother. Nor is it uncommon for the same estate to undergo frequent changes by the subsequent birth of presumptive heirs who are nearer before it finally rests upon an heir apparent. An estate may be given to an only child, upon whose death it may descend upon an aunt as the nearest presumptive heir, who may be deprived of it by an after-born uncle, on whom a subsequent sister may enter, and who will again be deprived of the estate by the...