McBryde v. Patterson

• Decision Date: 31 January 1878
• Citation: 78 N.C. 412
• Parties: D. D. MCBRYDE and others v. JOHN PATTERSON and others.
• Court: North Carolina Supreme Court

78 N.C. 412

D. D. MCBRYDE and others

v.JOHN PATTERSON and others.

Supreme Court of North Carolina.

January Term, 1878.

SPECIAL PROCEEDING for Partition of Land commenced in the Probate Court, and heard on appeal at Fall Term, 1877, of ROBESON Superior Court, before Moore, J.

The facts sufficiently appear in the opinion of this Court delivered by THE CHIEF JUSTICE.The defendant, John Patterson, moved to dismiss the proceeding upon the ground that he was sold seized of the land.Motion denied.Appeal by defendant.

Messrs. Merrimon, Fuller & Ashe, for plaintiffs .

Messrs. Giles Leitch and A. Rowland, for defendant.

SMITH, C. J.

The land to procure partition of which this proceeding was instituted, belonged to one Robert Hughes, who acquired it by purchase and died intestate, unmarried and without issue.He left surviving him a brother, William Gordon, and four sisters, Sarah, Effie, Isabella and Caroline.The intestate himself and Caroline were illegitimate, and William and the three other sisters, legitimate children, born of the same mother.The shares of those born in wedlock are claimed, some of them by the plaintiff, the others by some of the defendants, and the share and estate of Caroline belong to the defendantJohn Patterson, the parties in interest and before the Court.

Controversies having sprung up during the progress of the cause in respect to the ownership of some of the shares, successive amendments of the pleadings have been allowed, and new parties introduced to adjust and conclude the conflicting claims thereto among the defendants.

The cause was brought to a hearing before the Probate Judge on the 27th day of June, 1873, and he on motion dismissed the proceedings, and the plaintiff appealed.

At Fall Term, 1877, the appeal came on to be heard before Moore, J., upon the motion to dismiss on the ground that the entire estate, under rule 11 of the canons, descended at the intestate's death to his illegitimate sister, Caroline, who thereby became sole seized of the land, and the same has been conveyed to the defendantJohn Patterson.The motion to dismiss was denied, and the Court declared that at the intestate's death, his land descended to his brother and all his sisters, legitimate as well as illegitimate, as heirs at law in equal parts, and that the sole seizin thereof was not in the defendantJohn Patterson, and the Court adjudged the plaintiffs to be entitled to partition of the land.From this judgment the defendantJohn Patterson appealed.

The 11th rule of descent upon the true construction of which the case depends, is in these words: “Illegitimate children shall be considered legitimate as between themselves and their representatives, and their estates shall descend accordingly in the same manner as if they had been born in wedlock.And in case of the death of any such child or his issue, without leaving issue, his estate shall descend to such person as would inherit if all such children had been born in wedlock.Provided always, that when any illegitimate child shall die without issue, his inheritance shall vest in the mother in the same manner as is provided in rule 6 of this chapter, Bat.Rev. ch. 36, Rule 11.This statute, the proper construction of which determines the rights of the parties in the case before us, in its general scope and terms, is very similar to the Act of 1799, ch. 522, upon which an interpretation was put in the case of Flintham v. Holder,1 Dev. Eq. 345.This Act was as follows; “That when any woman shall die intestate leaving children commonly called illegitimate or natural born out of wedlock, and no children born in lawful wedlock, all such estate whereof she shall die seized or possessed of, whether real or personal, shall descend to and be equally divided among such illegitimate or natural born children, and their representatives in the same manner as if they had been born in wedlock; and if any such illegitimate or natural born child shall die intestate without leaving any child or children, his or her estate, as well real as personal, shall descend to and be equally divided among his or her brothers and sisters born of the body of the same mother, and their representatives, in the same manner and under the same regulations and restrictions, as if they had been born in lawful wedlock; any law, usage or custom to the contrary not withstanding.James Flintham, an illegitimate son of Ailsey Flintham, died intestate leaving no widow, child or other issue, and possessed of a considerable personal estate, which went into the hands of Thomas Holder, his administrator.The intestate had a brother and two sisters who were born in lawful wedlock of the same mother.

RUFFIN, J., in delivering the opinion of the Court, quotes the statutes and proceeds thus:

“If there be none but bastards,...