Leathers v. Gray.

• Court: North Carolina Supreme Court
• Writing for the Court: DAVIS
• Citation: Leathers v. Gray., 96 N.C. 548, 2 S.E. 455 (N.C. 1887)
• Decision Date: 27 May 1887
• Parties: LEATHERS v. GRAY.

96 N.C. 548

2 S.E. 455

LEATHERS

v.GRAY.

Supreme Court of North Carolina.

May 27, 1887.

Appeal from Orange county.

A. W. Graham and John Manning, for plaintiff.

Graham & Ruffin and Batchelor & Devereux, for defendant.

DAVIS, J.

This was a civil action tried before CONNER, J., at the November term, 1886, upon the following case agreed:

“(1) That by the will of Joseph Armstrong, dated twenty-third day of May, 1839, and duly admitted to probate at November term, 1840, it is provided: ‘I also give to the said Peggy Armstrong the use, service, or benefit of all the following property named in this second case during her natural life or marriage, and no longer, to-wit, three tracts or parcels of land, all being on waters of Flat river. First, the tract that my father, William Armstrong, lived and died on, containing 220 acres; the second is a tract that I bought from Henry Berry, containing 17 acres; the third is a tract that I bought from my brother, Wm. Armstrong, containing 216 acres.’ And by the same will it is further provided: ‘I also give and bequeath to my son, James W. Armstrong, the following property, to be received as soon as convenient after the death or marriage of his mother, Peggy Armstrong, viz., one-half of three tracts of land, all lying on the waters of Flat river. The first is the tract my father lived and died on, containing 220 acres; the second is the tract that I bought from Henry Berry, containing 17 acres; and the third is a tract that I bought from my brother, William Armstrong, containing 216 acres.’ And also: ‘I give and bequeath to my daughter, Parthenia Leathers, during her natural life, and, after her death, to the begotten heirs or heiresses of her body, forever, one-half of three tracts of land all lying on the waters of Flat river. The first tract is the tract my father, William Armstrong, lived and died on, containing 220 acres; the second is the tract I bought from Henry Berry, containing 17 acres; and the third is a tract that I bought from My brother, William Armstrong, containing 216 acres,-to be received as soon as convenient after the death of her mother, Peggy Armstrong.’ William J. Gray was a witness to said will, and proved the execution thereof.

“(2) That on the fifth day of December, 1845, John B. Leathers, and Parthenia and J. W. Armstrong, by J. B. Leathers, his agent and attorney in fact duly appointed, (Peggy Armstrong then being dead,) executed to the defendant, William J. Gray, in consideration of the sum of seventeen hundred and sixty 25-100 dollars, a fee-simple deed to the above described lands, with warrant, and said lands are described as bounded as follows, [giving metes and bounds,] containing four hundred and seventy acres, more or less, lying in the counties of Orange and Person, on the waters of Flat river, adjoining the lands of Charles Holeman, Henry Berry, James Holeman, and others, and the said Wm. J. Gray has been in the continued uninterrupted possession of said lands since that time.

“(3) That Parthenia Leathers died on the twenty-ninth of November, 1885, and her husband, J. B. Leathers, died August 21, 1880; and the plaintiff, John B. Leathers, is one of the two children of said J. B. and P. Leathers, now 36 years of age; the other child, F. S. Leathers, having, on January 4, 1886, executed a quitclaim deed to W. J. Gray to said land.”

Upon these facts his honor rendered the following judgment: “Upon the foregoing facts agreed upon between the plaintiff and the defendant, I am of opinion that, by the operation of the rule in Shelley's Case, the plaintiff's mother, Parthenia Leathers, took, under the will of Joseph Armstrong, a fee-simple estate in the share of the lands devised to her; the will having been made, and the conveyance by her to the defendant, prior to 1856. The question of the effect of the act of 1856 (section 1329 of the Code) cannot arise. The deed executed in 1845 by said Parthenia Leathers and her husband conveyed to the defendant a fee-simple estate, and the plaintiff is not entitled to recover. The plaintiff will therefore take nothing by his suit, and the defendant will recover judgment against him and his surety for the cost in this behalf expended.”

The sole question presented for our consideration is, did Parthenia Leathers take an estate in fee under the will of Joseph Armstrong, by the operation of the rule in Shelley's Case, or did she take only an estate for life, with remainder to her children? In what sense were the words “heirs or heiresses” used by the testator? Were they used to denote the indefinite succession of persons in infinitum, technically designated by the word, “heirs?” If so, the...