Galloway v. Carter

• Court: North Carolina Supreme Court
• Writing for the Court: MERRIMON, J.
• Citation: Galloway v. Carter, 100 N.C. 111, 5 S.E. 4 (N.C. 1888)
• Decision Date: 20 February 1888
• Parties: GALLOWAY et al. v. CARTER et al.

5 S.E. 4

100 N.C. 111

GALLOWAY et al. v. CARTER et al.

Supreme Court of North Carolina

February 20, 1888

Appeal from superior court, Stokes county; MACRAE, Judge.

A will devised real estate in fee simple and personalty to testator's wife and children, and directed that certain other real estate should be sold, and the proceeds divided among the wife and children, the wife not to receive any until each child had received $1,000, and that, if any child had received $1,000, and that, if any child should die without issue living, his share then accruing, as well as the original, should go to the surviving children. Held, that the last clause applied to all the estate of the testator, and that a child dying without issue had only a life estate in the devised property.

Mebane & Scott, for appellants.

Glenn & Glenn, for appellees.

MERRIMON J.

It appears that Robert Galloway died in the county of Rockingham in the year 1832, leaving a last will and testament, which was duly proven, and the executors therein named duly qualified as such. The following is a copy of this will:

"In the name of God, amen: I, Robert Galloway, of Valley Field in Rockingham county, North Carolina, do make and publish this paper writing as my last will and testament, hereby expressly revoking all former wills by me made.

"I give and devise to my beloved wife, Mary S. Galloway, my manor, plantation, and the lands thereto belonging, called 'Valley Field,' and containing about twelve hundred acres, for and during the term of her natural life; and I give absolutely to her the following slaves, namely Hubbard, Joe, Dick, (the miller,) Jerry, (who has been employed at the court-house,) Patrick, my old and faithful servant and friend, Isaac, (who lives at the court-house,) Isaac, (at the Eagle Falls,) Lorenzo, William, (purchased from Fitzgerald,) Reuben, James, Nancy, Elsey, Tamer, Dina, and her three youngest children, named Grochus, Nancy, and Polly; Leanthea, Alice, Dorcas, and her child Betsey; Allen, Philip, (at the court-house,) and Sylla and Delilah, two children of Nancy; and also my household furniture and kitchen utensils at Valley Field; my farming implements and utensils, wagons, carts, plows, gear, and the like; stock of horses, cattle, hogs, and sheep, and all my crop and provisions on hand, and the crop growing on that plantation at my death; also my twenty-two shares of stock in State Bank of North Carolina, and the sum of one thousand dollars in money, to be paid as she may require it. But I further direct that my wife shall furnish my sons Thomas and Rawley, and my daughters Mary and Elizabeth, (if not done in my life-time,) with three beds and furniture each, and for that purpose she may take eight beds and furniture from the court-house; I also give her my carriage and horses.

"I give to my son Charles the tract of land called 'Rose Hill,' situated on Dan river, on which he resides, containing about thirteen hundred acres, in fee-simple; also the following negroes, to-wit: Reuben, Anthony, Winnie, Philip, Tilda, Pinkney, Nancy, Isaac, (son of Phillis,) Lethe, George, Alsey, daughter of Edy, and Billy; also all the furniture, household, kitchen, and farming utensils, crops on hand or growing on said plantation, and the stocks of all kinds there belonging.

"I give to my son Robert, in fee-simple, the tract of land situated on Dan river called 'Eagle Falls,' containing about one thousand twenty-five acres; also the following negroes, to-wit: Armisted, Sam, William, Jerry, Delia, Branton, Dochia, Mary, Dick, Alley, Joe, and Tom; also all the household and kitchen furniture in his possession at Eagle Falls, or Spring Garden, and all farming utensils, crops on hand or growing at Eagle Falls, and the stocks of all kinds there belonging.

"I give to my daughter Marion, wife of James E. Galloway, in fee-simple, the following tracts of land, situated in the Western district of Tennessee, viz: One tract on the Obion river, which James Martin conveyed to me, being part of a five thousand acre tract, called the 'Big Clover Lick;' and one other tract, containing about one thousand three hundred and nine and a half acres, lying on the waters Loore Hatchee river, in Fayette county, which the said James E. conveyed to me; also the following negro slaves, to-wit: Daniel, (which the said James E. hath already sold by my consent,) Peter, young Hubbard, Lewis, Bob, Henry, Lucy, Hester, Lucinda, Milly, Abbey, and Lavinia; and all the furniture, stock, and other perishable property which I put into possession of her said husband.

"I give unto my son Thomas three tracts of land, situated on Dan river, adjoining each other, which I purchased from Daniel Worsham and Joseph Crook, and the heirs of Gideon Rooche, (the latter of which was conveyed to him,) my said son, containing altogether about one thousand acres in fee-simple; also the following negroes, to-wit, Tom, (purchased from W. Learey,) Stephen, George, Sam, Hannah, Luke, Armstrong, Martha, Hannah, Esther, Sophy, and Lucretia, and all such stocks of any kind, household and plantation utensils, as I may in my life-time place on said land, or put into possession of my said son Thomas.

"I give to my son Rawley, in fee-simple, a tract of land which I purchased from Theophilus Long, situated on Dan river, containing about three hundred acres, with all implements of husbandry, and all the stocks thereon, and the crops thereon growing at my death; also my manor plantation, called 'Valley Field,' in fee-simple, in reversion after his mother's death; and also the following negroes, namely: Henry, son of Tamer; Hubbard, son of Maria; William, son of Dinah; Harrison; Washington; July; Edy; Shelton; Aggy; and Henderson; Elijah; Martha, daughter of Tamer; Elias. I also give my son Rawley, in fee-simple, a tract of land adjoining the Lacy tract, conveyed to me by the executors of Martha Scales, and containing about sixty acres, making that whole tract about three hundred and sixty acres, or thereabouts.

"I give my daughter Mary S. the land which I purchased from Barnes; also that purchased from George Barnes; also that purchased from William Pratt; that purchased from Stephen Pratt, and John Robinson; and that purchased from John Strong,--containing about six hundred acres, more or less, in fee-simple; also the following negroes, to-wit: Henry, purchased of William Buck; James, son of Bridget; Anthony, son of Winnie; Judah; Mary Ann; Ph be; Bridget; Abram, son of Diana; Catherine; Dorre; Ann; and Nelson, son of Dorcas, at the court-house.

"I give to my daughter Elizabeth, in fee-simple, the tract of land called 'Barne's Tract,' containing about eight hundred acres, which was conveyed to me by the clerk and master in equity for the county; and also the following negroes, to-wit: Martha; Jefferson; Adam; David; Bonaparte; Peggy; Minerva; Adeline; Harrison, son of Peggy; Dorcas and her son Lewis; and Abbey, daughter of Tamer.

I also give to each of my said two daughters, Mary and Elizabeth, the sum of four thousand dollars in ready money, and a horse and saddle, to be raised out of my estate as hereinafter directed. I further will and declare that any issue belonging to me of any female slave herein bequeathed, which is now born, and which is not in this will particularly named, or which may be born before my death, and not otherwise disposed of by me, shall go and belong to the same person or persons to whom I have bequeathed the mother. This I direct knowing that several already have children, and that others probably will have them.

"I order and direct that my tract of land called 'Austin's Old Place,' situated on Dan river opposite the Mulberry island, and containing about five hundred acres, more or less; also my tract called 'Spring Garden,' containing about 2,100 acres, conveyed to me by James E. Galloway; and also the lands I purchased from Drury Williams and son, from Mitchell Pounds and Purtle, and all my lots, lands, and houses near Rockingham court-house, and all the residue of my lands and real estate not herein devised and situated in North Carolina, which I own in my own right, or in company with others; and also all my lands situated in Tennessee, and all the residue of my specific personal estate,--be sold by my executors, or such of them as may prove my will and act in its execution, which sales may be made at public auction, or by private contract, at the discretion of my said acting executor or executors, with this restriction: that no private sale shall be made to any or either of my executors, but my said executors may be bidders and buyers at any public sale; and in that event the other executors may and shall have power to convey the lands or other things purchased by a co-executor to him or them so buying, in the same manner as to any other purchaser; and I direct that sales of the Tennessee lands to be made on a credit of one, two, and three years, and out of the proceeds of such sales of my stocks of merchandise on hand, and other property not given away herein, my cash on hand, and debts owing to me, I order the expenses of the execution of my will to be paid, and the pecuniary legacies of my wife and daughters Mary S. and Elizabeth. The residue thereof I give to my wife and all my children, equally to be divided between them, except that my wife is not to have any part thereof until each of my children shall have received one thousand dollars out of this residue.

"My will further is that, if any or either of my children should die without leaving issue living at his, her, or their death the share or shares of him, her, or them so dying (as well the accruing as the original share) shall be, go over, and remain to the surviving brothers and sisters, and the...