Others v. Cornelius
| Decision Date | 28 November 1887 |
| Citation | 98 N.C. 433,4 S.E. 38 |
| Parties | SiMONTON and others v. Cornelius and others. |
| Court | North Carolina Supreme Court |
Estates—LIFE-EsTATE—Action by Remainder-Men.
Plaintiffs brought an action to recover certain lands, in which they claimed the lands were devised solely to their mother and on her death that the lands should descend to them. The mother was dead, and the lands had been conveyed by the father to another. The clause in the will making the bequest was as follows: " I give and bequeath to my daughter Jane Julia Simonton the land I now live on, " etc., "all of which land and negroes and other property before mentioned to remain in the possession of the said Julia Simonton and her husband, during their natural lives, and then to descend to the children of the said Julia equally." Held that plaintiffs should be nonsuited on the ground that the husband of said Julia being still alive, the suit was prematurely brought.
Appeal from superior court, Iredell county; Gilmee, Judge.
Scott & Caldwell, for plaintiff. C. H. Armfleld, for defendant.
This action, begun on January 20, 1886, by the plaintiffs against the defendants, is to impeach certain proceedings heretofore had in the court of equity of Iredell, under the final decree in which, and the deed made by the clerk and master pursuant thereto, the defendant Joseph C. Simonton derives title to the land in controversy. The answer meets all the allegations of fraud and unfair practices, in the institution and conducting of the suit to a final determination, by a direct denial, and asserts that everything was done regularly and according to the course of the law in such cases, and that a good title was acquired by said Cornelius. The record speaks of issues drawn from the conflicting averments upon which the jury were impaneled topass, and in reference to which evidence of opposing tendencies was introduced, while none such are found in the record to enable us to see precisely the matters in dispute. After the testimony was all in, and the argument had progressed to some extent, the court intimated that the action would not lie during the life-time of said Joseph C, and in submission thereto the plaintiffs suffered a nonsuit and appealed.
The land in controversy belonged to one Joseph Byers, who died in 1844, leaving a will wherein he appoints his two sons-in-law executors, of whom the said Joseph C. alone qualified. In one of the clauses of the will the testator makes the following disposition of real and personal estate: "(1) 1 give and bequeath to my daughter Jane Julia Simonton the land I now live on, composed of two tracts, to-wit, the McKee tract, and the other a state grant, supposed when united to contain 440 acres; also the tracts of land called the 'Kerr Tracts, ' supposed when united to contain 301 acres;" also certain slaves and other person alarticles specified, concluding the clause thus: "All of which land and negroes and other property before mentioned to remain in the possession of the said Julia Simonton and her husband, during their natural lives, and then to descend to the children of the said Julia equally." In very similar terms the testator gives to his daughter Margaret...
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Davis v. Bass
...v, Stamper, 121 N.C. 252, 28 S.E. 20. They likewise apply to a gift or devise to husband and wife "during their natural lives." Simonton v. Cornelius, supra. in mind the above characteristics and incidents of an estate held by husband and wife as tenants by the entirety, we think it is clea......
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...barred also. Johnson v. Edwards, 109 N.C. 466, 14 S.E. 91, 26 Am. St. Rep. 580. The above rules apply to devises to man and wife (Simonton v. Cornelius, supra), also to contracts to convey land to man and wife ( Stamper v. Stamper, 121 N.C. 251, 28 S.E. 20). They likewise apply to a gift or......
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