Henderson v. Henderson

• Decision Date: 31 December 1853
• Citation: 1 Jones 221,46 N.C. 221
• Court: North Carolina Supreme Court
• Parties: MARGARET HENDERSON AND OTHERS v. BUCKNER HENDERSON AND URBAN HENDERSON, EXECUTORS, AND OTHERS.

1 Jones (NC) 221

46 N.C. 221

MARGARET HENDERSON AND OTHERS

v.BUCKNER HENDERSON AND URBAN HENDERSON, EXECUTORS, AND OTHERS.

Supreme Court of North Carolina.

December Term, 1853.

The word HEIRS, when applied to the successor to personal property in the contruction of a will, generally is held to mean those who take under the Statute of Distributions, and as such, the widow is generally included; yet, where the contest plainly shows that children only are meant, she will be excluded from the succession.

CORBITT v. CORBITT, decided at this Term, commented on and distinguished from this case.

PETITION heard before his Honor Judge MANLY, at Spring Term, 1853, of Onslow Superior Court, for the recovery of legacies under the will of William Henderson. The only question in the case arose on the construction of the will, of which the following is a copy of the material parts:

After the introductory part, and a request that tombstones may be purchased for his grave, the testator proceeds:

“To Buckner Henderson, I have this day made a deed to all the lands I intend to give him, witness by the above-named witness.

To Urban Henderson, I have this day transferred a deed from Buckner Henderson to me, for a tract of land on the Southwest side of New River, it being all the lands I intend to leave or give him.

To my wife Margaret Henderson, I lone, during her natural life, the lands on which my dwelling stands, with the lands I purchased of Thomas Jarman, including all my lands, with the exception of the two tracts or parts that I this day have given to Buckner and Urban Henderson, separately, and after her death, I give it to my youngest son, William Henderson, to have and to hold, free from the claims of any person whosoever.

Also, to my wife Margaret Henderson, I loan, during her natural life, negro woman Molly, and after her death to be sold, and equally divided between all my heirs, excepting Christeney Henderson. My man Peter I want to be hired to such person or persons as he wishes to live with, until my son William Henderson becomes eighteen years of age, and the hire of said Peter, to go to the use of my two youngest children, viz: William and Nancy, and the time my son William arrives at the age of eighteen years old, I then give my man Peter to Nancy Henderson, my youngest daughter, to have and to hold, free from all right or title of any person whosoever.

To Christeny Henderson, I give one dollar, and the rest of my property, such as the family utensels, household and kitchen furniture, to be sold, and equally divided among all my heirs, after paying for said tomb-stones, with the exception of Christeny Henderson, to whom I have given one dollar, in full of all I intend to give her.

Witness, &c.”

The widow and some of the children are the plaintiffs, and the executors and the remaining children are defendants. The defendants answered, and replication entered. The defendants insisted, among other things, that the plaintiff Margaret was not entitled to come in with the children, under the word heirs. The prayer is for an account and payment of the legacies.

The case was heard on the petition, answers and exhibit, and upon consideration thereof, his Honor made a decree, dismissing the petition; whereupon, the plaintiff prayed and obtained an appeal to the Supreme Court.

J. W. Bryan, for plaintiffs .

No counsel for defendants.

NASH, C. J.

The petition is filed for the purpose of recovering a legacy under Wm. Henderson's will. The petitioner, Margaret Henderson, the widow of the testator, claims a child's part of the property disposed of by the residuary clause. The clause of the will, set forth in the petition, is as follows: “And the rest of my property, such as the stock, farming utensels,...