Gregory v. Beasley

• Decision Date: 30 June 1840
• Court: North Carolina Supreme Court
• Parties: MACKEY GREGORY v. NATHANIEL J. BEASLEY, Adm'r. of MARY L. GREGORY et al.

1 Ired.Eq. 25

36 N.C. 25

MACKEY GREGORY

v.NATHANIEL J. BEASLEY, Adm'r. of MARY L. GREGORY et al.

Supreme Court of North Carolina.

June Term, 1840.

Where a testator bequeathed all his personal property to his four children, A., B., C. and D., to be equally divided between them, when his son A. arrived to the age of twenty-one years, “and if one or two or three should die under age, or without lawful issue, for all the property to go to the surviving ones forever;” it was held, that upon the death of D., a daughter, before her arrival at full age, but after A. had attained twenty-one years old, her share would go over to her brothers then living; and that neither the child of a sister who had died after attaining full age, nor the next of kin of the testator, was entitled to any part of it.

Samuel Gregory died sometime in the year 1824, leaving a will, in which he bequeathed as follows:

“I give unto my four children, Maria, Frederick, Mackey and Mary Lucilla Gregory, all my property, to be equally divided when my son, Frederick Gregory, arrives to the age of twenty-one years old. And if one, or two, or three should die under age, or without lawful issue, for all the property to go to the surviving ones forever.”

Frederick Gregory arrived at full age in March, 1835; soon after which, upon a petition filed for that purpose, the slaves belonging to the testator's estate were divided into four lots or shares, and the report thereof was confirmed at the February Term, 1836, of Chowan County Court. Maria married the defendant, Beasley; arrived to the age of twenty-one years; had issue a daughter, now alive, and died in January, 1834. Mary Lucilla Gregory died under age, and without issue, in May, 1838. The widow of the testator married, and had issue a son, now living. Mackey Gregory, the brother of the intestate, Mary Lucilla, filed this bill against her administrator, and also against the representative of Maria Beasly, the next of kin of the said Mary Lucilla and Frederick Gregory; in which he claimed to be entitled to one half of the share of the slaves allotted to the said Mary Lucilla, admitting that his brother, Frederick, was entitled to the other half. Answers were put in by the defendants, admitting the above facts to be true, and insisting upon the interests of the parties respectively.

The cause was submitted, without argument, by

M. Haughton for the plaintiff , and

A. Moore for the defendants .

DANIEL, Judge, after stating the case as above, proceeded as follows:

There are three sets of claimants upon...