McClure v. Taylor

• Decision Date: 15 December 1891
• Parties: McCLURE v. TAYLOR et al.
• Court: North Carolina Supreme Court

14 S.E. 42

109 N.C. 641

McCLURE v. TAYLOR et al.

Supreme Court of North Carolina

December 15, 1891

Appeal from superior court, Rutherford county; W. A. HOKE, Judge.

Proceedings by J. A. McClure against Oscar Taylor and others for partition of land. Judgment for plaintiff. Defendants appeal. Affirmed.

The other facts fully appear in the following statement by MERRIMON, J.:

It appears that Isaac D. McClure died leaving a last will and testament, which was duly proven. After therein disposing of his personal property, he devises as follows: "I give and bequeath to my son J. A. McClure two-thirds of my land on the lower part, including my dwelling-house and outbuildings including two-thirds of the upland; and the other third of my land I give and bequeath to the heirs of my daughter Mary Taylor. I want it divided to the best advantage of both parties." This special proceeding is brought to have partition of the land specified in this devise made between the plaintiff and the defendants, who are the heirs of Mary Taylor, mentioned in the devise. The plaintiff contends that the land is to be divided so as to allot and set apart two-thirds in quantity of the same to him, and one-third to the defendants. The defendants contend that, under a proper interpretation of the devise above recited, the one-third in value of land should be set apart and allotted to them, and two-thirds in value to the plaintiff. The court adjudged that partition be made as directed in the devise, according to quantity, and not according to the value of the land. The defendants excepted, and appealed to this court.

Under a will reciting: "I give and bequeath to my son J.A.M two-thirds of my land on the lower part, including my dwelling-house and outbuildings, including two-thirds of the bottom and two-thirds of the upland; and the other third of my land I give and bequeath to the heirs of my daughter M.T I want it divided to the best advantage of both parties,"--partition must be made according to quantity and not according to the value, of the land; the provisions that two-thirds of the bottom, including the house and outbuildings, and also two-thirds of the upland, be given to the son, showing that this was the intention of the testator.

Matt McBrayer, for appellants.

Justice & Justice, for appellee.

MERRIMON C.J.

We think the court below properly interpreted the devise in question. When the testator simply devised to...