Kiser v. Kiser

• Citation: 55 N.C. 28,2 Jones 28
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 December 1854
• Parties: CHARITY AND MARGARET KISER v. JOHN KISER.

2 Jones Eq. 28

55 N.C. 28

CHARITY AND MARGARET KISER

v.JOHN KISER.

Supreme Court of North Carolina.

December Term, 1854.

A bequest of slaves to C. (a married woman) and after her death, and the death of another, to fall to her heirs, there being nothing in the context to vary the meaning of the language from its legal purport, was held to be within the rule in Shelly's case, and to give the absolute property to the husband of C.

The word heirs, when applied, in a will, to personal property, means those who take by law or under the statute of distributions.

CAUSE removed from the Court of Equity of Forsythe County, at the Fall Term, 1854.

The bill in this case, was filed to prevent the defendant from sending the slaves in question, beyond the limits of the State. The slaves having been seized under a writ of sequestration, the defendant gave bond for their forthcoming, and at the return term of the writ, filed his answer, claiming the right of property in these slaves. The only question in the case, arises out of the fifth clause of the will of Casper Stoltz, under which both plaintiffs and defendant claim title to the property, which is fully set out in the opinion of the Court. The cause was set for hearing on the bill, answer and exhibit, and sent to this Court by consent.

No counsel appeared for the plaintiffs in this Court.

Miller for the defendant .

PEARSON, J.

Casper Stoltz bequeathed as follows: “ Fifthly. I will and bequeath unto my daughter Christina, that married John Kiser, a negro girl by the name of Mariah and her increase, and the plantation on which they now live, by said John Kiser giving my beloved wife twenty bushels of corn and one good four horse load of hay per annum, as long as she lives, and at the death of both of them, said negro girl and her increase, to fall to the heirs of my daughter Christina.”

Christina is dead, leaving two children, who are the plaintiffs and her husband, who is the defendant: The question is, are the children entitled, as purchasers, under the limitation over? Or did the title to the negro woman vest absolutely in Christina, so as to pass to her husband?

It is settled that the “rule in Shelly's case” applies to personal property, and we can see nothing to take this case out of its operation; Christina took at least a life estate, and by the same gift a limitation is made to “her heirs,” consequently, they are words of limitation and not of purchase. An examination of the whole will shows nothing to justify the construction that “heirs” is used in the sense of “children”: If such was the testator's intention, it is to be regretted that he did not use words proper to express his meaning, instead of using words that have a settled legal signification to the contrary.

Our attention was directed to the fact that the limitation over, was “at the death of both of them,” and it is suggested to be doubtful who was meant. It is evident that Christina...