Jones v. Oliver

• Decision Date: 31 December 1844
• Parties: WILLIAM JONES, ADM'R. . v. JOHN OLIVER et al.
• Court: North Carolina Supreme Court

3 Ired.Eq. 369

38 N.C. 369

WILLIAM JONES, ADM'R. .

v.JOHN OLIVER et al.

Supreme Court of North Carolina.

December Term, 1844.

A testator devised, by a will dated in 1837, certain property “to his wife for life, and, at her death, to her heirs lawfully begotten of her body, if any there should be, equally. But in case there should be no such heirs lawfully begotten, as aforesaid, then to be equally divided among the next of kin of myself and my said wife, to them, their heirs and assigns forever.” The widow died leaving no issue. Held, that in that event, since the act of 1827, (Rev. St. ch. 122, sec. 11) the limitation over was good and took effect.

After the death of the testator, his widow married a second husband, who survived her. Held, that this second husband, not being of the blood of the widow, was not comprehended within the terms, “her next of kin.”

In a devise to the next of kin, the words “next of kin,” mean “nearest of kin,” and those only are entitled, who are nearest in blood, in exclusion of others, who are next of kin in the sense of the statute of distributions.

In a devise by a testator to the next of kin to himself and his wife, the next of kin of the wife take an equal share with the next of kin of the husband, though the former may not be in as near a degree of consanguinity to the wife as the latter were to the husband.

In a devise to the next of kin, to take effect after a prior limitation, the general rule is, that the next of kin, at the time of the death of the testator, are intended, and not those who may be next of kin at the period when the devise is to vest, unless there be some special circumstances to shew that the testator meant otherwise.

In this respect, there seems to be no difference between a gift over to the testator's own next of kin, or those of another person.

Cause removed from Carteret Court of Equity, at Fall Term, 1843.

This was a bill filed by the plaintiff as administrator, with the will annexed of Richard P. Oliver, asking the advice of the court as to the proper construction of the said will. The questions presented are stated in the opinion delivered in this Court.

J. W. Bryan and Iredell for the plaintiff .

Badger, J. H. Bryan, Washington and Mordecai for the defendants .

DANIEL, J.

The plaintiff has filed this bill, asking the advice of the court, as to the proper construction to be given on several points in the last will of his testator, Richard Oliver. The will was made in 1837. First: Is the executory devise in the following clause too remote, or is it good in law?--“Item, I lend unto my wife, Sally Oliver, the house and plantation where I now live, together with all my slaves and their increase, and all the rest of my estate, both real and personal, for, and during her natural life; and, at her death, I give and bequeath the said estate, as aforementioned, to her heirs lawfully begotten of her body, (if any there should be) equally. But in case there should be no such heirs lawfully begotten as aforesaid, then and in that case, I give and bequeath the whole of my estate as aforesaid, to be equally divided among the next of kind ( kin it is admitted) of myself and of my said wife, Sally, to them, their heirs and assignees forever.” We are of the opinion, that the executory devise over, on the death of the testator's wife, without heirs of her body (or issue) is not too remote, but clearly good since the act of 1827. That act declares, that a limitation in a deed or will, made to depend upon the dying without heirs of the body, &c., shall be held to take effect, when such person shall die, not leaving such heirs of the body living at the time of his or her death. Secondly: Sarah Oliver, the testator's widow, married Richard Parsons, and thereafter died without leaving issue. Is her last husband (Parsons) of kin to his said wife, in the meaning of the testator's will? We answer, that in common acceptation, the being of a man's kindred is being of his blood. The testator, therefore, is here to be understood to refer to such persons, as were related by blood to him and his wife, Sally Oliver. It is not mentioned in the pleadings, that Parsons was even of the blood of his wife; he, therefore, is not entitled to any part in the said legacy. 1 Roper. on Leg. 106. Watt v. Watt, 3 Ves. 244. Powell on Dev. 290, note 2. Thirdly: The testator left living at his death, and they are now living, a brother, John Oliver, and a sister, Mary Meadows, and, also, the children of a deceased brother, Daniel Oliver: Are the children of the deceased brother to take any part or share of the said legacies, under the words in the will? We answer, No. A bequest to next of kin generally will entitle those only to take, who are nearest in blood, in exclusion of others, who are next of kin in the sense of the statute of distributions. Next of kin means nearest of kin. Wimbles v. Pitchers, 12 Ves. 433. 1 Mad. Rep. 30. 1 Roper. on Leg. 108. Elmsley v. Young, 8 Cond. ch. Reports, 227. Fourthly: At the death of Mrs. Parsons, late Sally Oliver, her next of kin then, was one aunt, Hannah Russell; but two of her uncles, William Jones and John Jones, were alive at the death of the testator, and they died during the life of Mrs. Parsons, the tenant for life. Is Hannah...