Jourdan v. Green

• Court: North Carolina Supreme Court
• Writing for the Court: HENDERSON
• Citation: Jourdan v. Green, 16 N.C. 270 (N.C. 1826)
• Decision Date: 31 December 1826
• Parties: ELIZABETH JOURDAN ET AL. v. SIMON GREEN et al.

16 N.C. 270

ELIZABETH JOURDAN ET AL.

v.SIMON GREEN et al.

SUPREME COURT OF NORTH CAROLINA AT RALEIGH

DECEMBER TERM, 1826

1. The word heirs, in a will, where the testator recognizes the existence of the ancestors, means heirs apparent. In a bequest to J. P. and the heirs of S. J., J. P. takes a moiety.

2. In such a bequest to heirs, if it be of a present interest, those only take who were born at the date of the will, and perhaps at the death of the testator. But if the interest is expectant upon a life estate, those take who are born before the expiration of the particular estate.

From FRANKLIN. Burwell Berry, on 10 July, 1818, made and published his will, which as far as is material to this case is as follows:

"I give and bequeath unto my wife, Elizabeth Perry, one negro man named Simon and one named Peter, and a woman named Suky, together with the balance of my stock and household and kitchen furniture that is left after paying my just debts, to her during her natural life, and after her death to be equally divided between my son John and my daughter Sally Jourdan's heirs.

"I have already given to my daughter Sally Jourdan one negro boy, Bob. I also give and bequeath to my daughter Sally Jourdan's heirs a negro boy named Adam and a negro girl named Sylla."

The bill was filed by the plaintiffs, who are the children of Sally Jourdan born before the death of the testator, Burwell Perry. It averred the death of the widow, Elizabeth Perry, and the plaintiffs insisted that they were entitled to an equal share with John, per capita, of the negroes Simon, Peter, and Suky and her increase.

The defendants, who were the children of Sally Jourdan born after the death of the testator, and the assignees of John, the son, admitted the facts set forth in the bill, and submitted to such construction as the Court might put upon the will.

HENDERSON, J. The words "heirs of Sally Jourdan" in this case means heirs apparent—the next of kin apparent, as the testator in his will takes notice that she is alive, by declaring that he had given her, negro Bob.

The bequest of negro Adam and Sylla importing a present interest, none of the children of Sally can take but those born at the time of making the will; at farthest, only those born at the testator's death; and in this case it makes no difference which period of time is taken, for none were born in the interval.

As to the property bequeathed to Sally's heirs after the deathof his wife, as there was no present interest...