Grant v. Bustin

• Court: North Carolina Supreme Court
• Writing for the Court: GASTON
• Citation: Grant v. Bustin, 1 Dev. 77, 21 N.C. 77 (N.C. 1835)
• Decision Date: 30 June 1835
• Parties: JAMES GRANT, Admr. of PATIENCE PITTS, v. THOMAS BUSTIN, Admr. of BENJAMIN BUSTIN.

1 Dev. & Bat.Eq. 77

21 N.C. 77

JAMES GRANT, Admr. of PATIENCE PITTS,

v.THOMAS BUSTIN, Admr. of BENJAMIN BUSTIN.

Supreme Court of North Carolina.

June Term, 1835.

Next of kin born before the time when distribution is to be made, are not entitled under the statute, unless they were in ventre sa mere at the death of the intestate.

THIS was a case for the distribution of the property of the plaintiff's intestate, originally commenced in Halifax Court of Equity. In the progress of the cause a question occurred, whether the intestate of the defendant, viz. Benjamin Bustin, was entitled to any part of the assets in the hands of the plaintiff, it being admitted that he was the half brother of intestate, Patience, born ten months and a half after her death. His Honor Judge MARTIN, on the Fall Circuit of 1833, thinking that the defendant was not entitled, made an interlocutory order, directing the clerk and master to exclude him from the distribution, and upon the prayer of the defendant an appeal was allowed, and the above facts certified.

Badger, for the defendant .

No counsel appeared for the plaintiff.

GASTON, Judge.

The only question presented by this appeal is, whether Benjamin Bustin, the half brother of the intestate, Patience Pitts, born ten months and a half after her decease, is entitled under the statutes of distribution to a share of her personal estate, in common with her brothers and sisters living at her death. This statute is in the nature of a will framed by the legislature, for all such persons as die without making one for themselves, and directing the disposition to be made of the property upon the death of its owners. After payment of debts the administrator is ordered to distribute the surplus among the lawful friends of the deceased. In England he is prohibited from making the distribution until a year after the death of his intestate; and in this state he cannot be...