Gibson v. Gibson

• Court: North Carolina Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Gibson v. Gibson, 4 Jones 425, 49 N.C. 425 (N.C. 1857)
• Decision Date: 30 June 1857
• Parties: Doe on tke demise of MOSES GIBSON v. RUFUS GIBSON.

4 Jones (NC) 425

49 N.C. 425

Doe on tke demise of MOSES GIBSON

v.RUFUS GIBSON.

Supreme Court of North Carolina.

June Term, 1857.

Where the word issue is used in a will, in relation to the interests of a son and three daughters of the testator, and as to the daughters, it is clear from other provisions of the will, (interpreted under a settled rule of law,) that children living at their deaths are meant, the same meaning must be attributed to it in regard to the son.

THIS was an ACTION of EJECTMENT, tried before SAUNDERS, J., at the last Spring Term of Guilford Superior Court.

CASE AGREED.

The lessors of the plaintiff claim title as heirs and devisees of Andrew Gibson. The defendant also claims title under Andrew Gibson, the land being the same that is devised to Joseph Gibson; and the question grows out of, and depends upon, the construction of the following clauses of the said will, which was made and published on the 24th day of February, 1823.

“5th. I will and devise unto Joseph Gibson, the tract of land on which I live, (reserving a life-estate, or maintenance, for his mother) also the shade room of my dwelling house, two negroes, &c., * * * It is my will that if my son Joseph die before his wife Mariann, that she shall have the same right and privilege and maintenance, as she now has, so long as she remains his widow.

6th. I will and devise unto my son Joseph Gibson, his executors, administrators, or assigns, in trust, to hold to the use of the heirs of Elizabeth Gibson's body, (but she to have a maintenance during her life,) a certain tract, or parcel of land, lying in the Counties of Guilford and Orange, (describing it,) also two negroes, (naming them and other personal property,) all of which I have heretofore loaned her, the said Elizabeth.

7th. I will and devise unto Joseph Gibson, his executors, administrators, and assigns, in trust, to hold to the use and benefit of the heirs of Jane Gibson's body, (but she to have a maintenance during her life,) one-half a tract of land, known by the name of Thompson's tract, to be equally divided, as to quantity and quality, by my executors; also, two negroes, (naming them, and other personal property), with all the other property heretofore loaned.

8th. I will and devise unto Joseph Gibson, his executors, administrators, and assigns, in trust, to hold to the use of the heirs of Nancy W. Gibson's body, (but she to have a maintenance during her life,) the other half of the Thompson tract to be divided as aforesaid, also four negroes, (naming them, and other personal property,) and as much other property as will make her heirs part equal to that of her sisters when they left me.

I will and devise that if any of my children should die without issue begotten in wedlock, that their property return and to be equally divided among all my children, the said Joseph, trustee, holding such part in trust, that may, or shall, come to my daughters, to their children.”

Joseph Gibson died without ever having a child.

The defendant claims as the devisee of Joseph Gibson; and it is agreed that, if Joseph Gibson took only a life-estate, under the will of his father, judgment shall be entered for the plaintiffs; but if the Court be of opinion that Joseph Gibson took the fee simple judgment is to be entered for the defendant.

The Court rendered judgment for the plaintiff, and the defendant appealed.

McLean and Morehead, for plaintiff .

Miller, for defendant .

BATTLE, J.

The case turns upon the construction of the will of Andrew Gibson, and the question is whether the limitation over, in the following clause, is too remote. “I will and devise that if any of my children should die without issue begotten in wedlock, that their property return to, and be equally divided among all my children, the said Joseph, trustee, holding such part in trust that may, or shall come to my daughters, to their...