Murray v. Oliver

• Decision Date: 30 June 1849
• Citation: 41 N.C. 55,6 Ired.Eq. 55
• Court: North Carolina Supreme Court
• Parties: ELI MURRAY et al. v. WILLIAM OLIVER et al.

6 Ired.Eq. 55

41 N.C. 55

ELI MURRAY et al.

v.WILLIAM OLIVER et al.

Supreme Court of North Carolina.

June Term, 1849.

Adding a codicil to a will is a republication, and the codicil brings the will to it and makes it a will from the date of the codicil.

Cause removed from the Court of Equity of Caswell County, at Fall Term 1848.

On the 30th of January 1827, Stephen Oliver made his will in which the residuary clause is as follows: “If there should be any remaining, after paying the moneys that I am security for him for, as for the balance of my estate, my desire is, that it shall be equally divided among the whole of my children during their natural lives. But my will is, that, if either of them die without a lawful heir, the whole of the property loaned them by me be returned for an equal division among the rest of my children.” By a codicil written on the same sheet of paper, and dated May 28th 1828, he says: “My will is, that, when any of my children shall have children, that are lawfully begotten, then and in that case, the property, I have loaned them, shall be theirs in fee simple to dispose of as they please.”

The testator died, leaving eight sons, who were his only children, and leaving a considerable number of slaves, which formed a part of the residue of his estate, and were divided among the children.

In 1847, the testator's son Robert died without a child, leaving twelve slaves, devised under his father's will. He made a will, bequeathing the slaves to the defendants, who are two of his brothers.

The plaintiffs, who are the other children of Stephen Oliver, and the representatives of Reuben, a son, who died, leaving children, insist, that, by the will of their father, Robert took but a life estate, and, as he died without having a child, the slaves, by the limitation over, are to be divided among the children.

The defendants insist, that Robert had an absolute estate, and claim the slaves under his will.

Norwood, for the plaintiffs .

J. H. Bryan and T. B. Venable, for the defendants .

PEARSON, J.

Whatever might have been the construction of the residuary clause, had it stood upon the original publication in 1827, it is put beyond doubt, by the republication in May 1828, by the codicil of that date. For, by the republication, the will is made to speak and operate from that time. The act of 1827, ch. 7 had then gone into effect, and gave efficacy to the limitation over. Whatever doubt was once entertained, it is now...