Midgett v. Midgett

• Court: North Carolina Supreme Court
• Writing for the Court: FURCHES
• Citation: Midgett v. Midgett, 117 N.C. 8, 23 S.E. 37 (N.C. 1895)
• Decision Date: 15 October 1895
• Parties: MIDGETT v. MIDGETT et al.

23 S.E. 37

117 N.C. 8

MIDGETT

v.MIDGETT et al.

Supreme Court of North Carolina.

Oct. 15, 1895.

Tenancy in Common—Creation by Will.

Under a will devising one-fourth of testator's land to each of four sons, providing that the share of the first son should begin at the boundary, arid that the shares of the rest should be bounded, each by the boundary of his predecessor, but further providing that they should take "share and share alike, the devisees take as tenants in common.

Appeal from superior court, Dare county; McIver, Judge.

Action by W. W. Midgett against John D. Midgett and others to partition lands. From a judgment dismissing the action, plaintiff appeals. Reversed.

MacRae & Day, for appellant.

FURCHES, J. Edward M, ann died leaving a last will and testament devising his lands to his four sons as follows: "(2) I give and bequeath unto my son Spencer D. Mann one-fourth part of all the lands I possess, beginning at Joseph Caroon's N. W. line, running N. W. by a straight line across the land, with all appertaining to it. (3) I give and bequeath to my son Samuel E. Mann one-fourth part of all the lands I own, beginning at Spencer D. Mann's N. W. line, running N. W., with all appertaining to it. (4) I give and bequeath unto my son Thos. R. Mann one-fourth part of all the lands I own, beginning at Samuel E. Mann's N. W. line, running N. W., with all appertaining to it. (5) I give and bequeath to my son W. K. Mann one-fourth part of all the land I own, beginning at Thos. R. Mann's N. W. line, running N. W., with all appertaining to it. The amount of land and marsh agreeable to estimation is six hundred and seventy acres. I request that the upland be examined by good, punctual men, and as far N. W. as considered to be fit for cultivation. I want to begin at Joseph Caroon's N. W. line, and be equally divided unto four parts, share and share alike, by running straight lines across the land from.the water to the back lines. The N. W. of privilege land and marsh I wish to be equal to each brother, for range." The plaintiff and defendants are the devisees and assignees of devisees named in the will. The plaintiff, wishing to hold his part of the land in severalty, brings this special proceeding in the superior court of Dare county (the land lying in that county), alleges a tenancy in common, and asks for partition. Defendants answered, but at the trial term they demurred ore tenus, and alleged that by the terms of the will they held their lands in severalty, and...