McDaniel v. King

• Decision Date: 28 February 1884
• Citation: 90 N.C. 597
• Court: North Carolina Supreme Court
• Parties: STARKEY MCDANIEL v. SUSAN KING and others.

90 N.C. 597

STARKEY MCDANIEL

v.SUSAN KING and others.

Supreme Court of North Carolina.

February Term, 1884.

EJECTMENT tried at Fall Term, 1883, of JONES Superior Court, before Philips, J. Plaintiff appealed from the ruling and judgment of the court below.

Messrs. Battle & Mordecai, Batchelor & Clark and Strong & Smedes, for plaintiff .

Messrs. Green & Stevenson, H. R. Bryan and Walter Clark, for defendants .

MERRIMON, J.

James McDaniel, senior, died in 1854, leaving a last will and testament, which was duly established, by which he devised and bequeathed to his numerous sons severally sundry tracts of land and much personal property, consisting of slaves, live stock, farming implements, &c.

Both the plaintiff and the defendants claimed to derive title to the land, the subject of this action, under the seventh paragraph of this will, the material parts of which provide as follows:

“Item 7th. I give and bequeath unto my son James McDaniel certain pieces or parcels of land, beginning at the mouth of the ditch at ‘Cherry Tree Island,’ then up the fresh ground cotton-patch ditch, thence to the centre of the water-oak flat, then a straight line to Pollock's Pocoson bridge, until it strikes or interescts with Starkey McDaniel's avenue, then with the avenue to the main road leading from Trenton to Trent bridge, then down said road to Antwine branch, then down the various courses of Antwine branch to Trent river, thence up the various courses of Trent river to my Comen's line near the bridge across said river at Trenton, then with the Comen's line to the main road near the mills, then up the mill pond to high water mark to the Comen place, then with said line to the main road above Trenton, then up the various courses of said main road leading from Trenton to William H. Bryan's line, and then with my own and Will. H. Bryan's line to Croocked run, then across said Croocked run and up with the various courses of said Croocked run to the first station or beginning, including all improvements, dwellings and appurtenances, with the exception of the mills and mill seat near Trenton.” * * * “To have and hold said estate of land and slaves to him and his heirs and assigns forever: Provided, always, should the said James McDaniel die leaving no lawful issue or heir surviving him, then said estate of land, slaves and personal property shall be equally divided as near as possible between my five or surviving sons, with the exceptions hereinafter named, share and share alike. And it is my will and desire that the lands bequeathed to my son James and known as my “ home plantation,” and bounded as above, and including the commons below Trenton, shall, at the death of my son James, he leaving no lawful heir or issue surviving him, descend to my son Nathan McDaniel, or his lawful heir or issue surviving him, to him, his heirs and assigns forever.”

The plaintiff claims, as the sole surviving son of the testator, his brother James McDaniel, Jr., the first and principal devisee named in the paragraph cited, having survived all the other sons of the testator, except the plaintiff Starkey, and having died without issue, before the bringing of this action. He insists that the land in question, although within the boundary of land specified above, did not on the death of his father James pass to his brother Nathan McDaniel, or his heirs under the last clause quoted above, because, he alleges, it was outside, and not a part, of the “ home plantation” of the testator; that is, he insists that the boundary specified in the 7th paragraph embraced more than the “home plantation,” mentioned and intended, and that the land claimed by him was not a part of it, but outside of it within the same boundary.

The defendant contended that the words “home plantation” and bounded as above, and including the commons below Trenton,” set forth in the last clause of the paragraph, constitute the “home plantation” as designated by the testator, and if so, it is conceded that the land in question is embraced by it.

On the trial in the court below, the plaintiff, contending that it did not certainly appear upon the face of the will what constituted the “home plantation” of the testator, mentioned in the last paragraph as set forth above, asked a witness what the testator, at the time of the execution of the will, “called and considered his home place?” This question was objected to by the defendant and the court sustained the objection, and to this ruling the plaintiff excepted.

We think the court properly excluded the testimony thus offered. The testator certainly had the right to devise his “home plantation” and define what land and how much it should embrace, and that without regard to what had theretofore been designated by the description. It is very clear that he exercised that right with intelligence and unusual precision. He seems to have had a settled purpose to leave as little to doubt and construction as possible, and has succeeded, certainly in the clause of his will under consideration.

In the same paragraph, only parts of which are set forth above, he devises to his son James several other tracts of land, designating them not by boundary, but by name and locality. He likewise bequeaths to him numerous slaves and other personal property. All this property he gives to his son James, “his heirs, assigns forever,” and adds, in the same...