McDaniel v. McDaniel

• Court: North Carolina Supreme Court
• Writing for the Court: PEARSON
• Citation: McDaniel v. McDaniel, 5 Jones 351, 58 N.C. 351 (N.C. 1860)
• Decision Date: 30 June 1860
• Parties: LOUIS H. McDANIEL v. JAMES McDANIEL AND OTHERS.

5 Jones Eq. 351

58 N.C. 351

LOUIS H. McDANIEL

v.JAMES McDANIEL AND OTHERS.

Supreme Court of North Carolina.

June Term, 1860.

Where land was devised to A and his heirs, with a restriction that if he died without leaving children, then to B and C; but if he wished to sell he should give them the preference, and provided a mode for ascertaining the value, it was Held that a power of alienation was conferred on A, and that B and C should be put to their election, under the direction of the Court, either to take the land in the manner prescribed, or to decline it.

CAUSE removed from the Court of Equity of Jones county.

James McDaniel made his will in 1853, and shortly thereafter died. By the fifth clause thereof, he devised and bequeathed as follows: “I give and bequeath to my son, Louis Henry McDaniel, the lands whereon he now lives, being a part of the Howard tract, containing all that part of the said land that lies on the left hand side of the public road leading from Trenton to White Oak, on condition that he release all claim on my other heirs, for the sum of one thousand dollars, (the same having been paid by the said Louis H. McDaniel in part payment of the said Howard lands.”) He then bequeaths an interest in certain mills, &c., and certain slaves, and other personal property to Louis, and adds, “Provided, always, that should the said Louis H. McDaniel die, leaving no lawful heir or issue surviving him, the said estate of lands and mills hereby devised, to be equally divided, as near as possible, between my surviving sons, share and share alike. And it is my will and desire that should my son, Louis H. McDaniel, desire to sell the land and mills hereby devised, that my five or surviving sons have the offer of the purchase, and should they not agree with regard to the purchase at a fair value, then, and in that case, they choose three disinterested persons, unconnected with the parties, either by consanguinity or affinity, and have said lands and mills valued, and that my five or surviving sons shall purchase said lands and mills at the valuation so made, and pay for the same in yearly instalments, should they be disposed to do so.”

The plaintiff, Louis H. McDaniel, alleges that he took possession of the property given him under the above recited clause, having released to his said brothers, the defendants, his claim to be repaid from his father's estate, the said sum of one thousand dollars; that being desirous of making sale of the land above mentioned, he has repeatedly offered the same to his brothers, the defendants, and that one of them, the defendant, William, and he have agreed on a price, $14.000 as the value of the said lands, and he is willing to take the said lands at that sum, provided his other brothers would relinquish all claim to come in for the said land, in case the defendant should die without leaving children; but that they refused to make such relinquishment; that he then offered it to them, singly or collectively, for $12.000, the sum which another had offered him, but they refused to buy it, and insist that by the terms of their father's will, any sale he may make, will be defeated in case plaintiff shall die without leaving a child or children. In consequence of the defendants' refusing to buy the said land, and in consequence of this unreasonable pretension, as he deems it, he alleges that he is unable to sell the land at all, and he prays the Court to put a construction on the said will of James McDaniel; and if the Court shall be of opinion that plaintiff has a power of alienation that the defendants may be compelled to make an...