Rives v. Frizzle

• Decision Date: 30 June 1852
• Citation: 43 N.C. 237,8 Ired.Eq. 237
• Court: North Carolina Supreme Court
• Parties: BENJAMIN RIVES v. JONATHAN R FRIZZLE ET AL

8 Ired.Eq. 237

43 N.C. 237

BENJAMIN RIVES

v.JONATHAN R FRIZZLE ET AL

Supreme Court of North Carolina.

June Term, 1852.

A bequest of personal property to the testator's wife for life, and “after her death, to be equally divided among his lawful heirs,” is a vested legacy in those who were his heirs at the time of his death, and, upon the death of one of his daughters, during the lifetime of the widow, survives to her administrator.

The words “after,” or “upon,” the death of the wife, or the like expressions, do not make a contingency, but merely denote the commencement of the remainder, in point of enjoyment.

Cause transmitted from the Court of Equity, of Pitt County, at the Spring Term, 1842.

Rodman, for the plaintiff .

Biggs, for the defendants .

RUFFIN, C, J.

Jonathan Frizzle, by his will, dated August 18th, 1843, lent certain slaves and other specific chattles to his wife Ruth for life: and he ordered that three other slaves, and the residue of his property, not lent to his wife, nor given to Edwin Carman in trust for his daughter Ann, should be sold, and the proceeds of the sale, after paying his debts, be lent out, and the interest paid to his wife during her life. Then the will directs, that “all the property lent to my wife, and the principal money” (so lent out), “after my wife's death, shall be equally divided between my lawful heirs, except the share, or part, which I have given away in trust for my daughter Ann, and she is not to have any other part or share.” The testator died in 1844, and his executor, who was one of his sons, proved the will, and delivered to the widow, the slaves and other things given to her specifically, and she kept them during her life. He also sold the residue, and lent out the money and paid the interest to her during her life. One of the testator's daughters, Margaret, died intestate in November, 1849, and without having had issue, and the plaintiff administered on her estate: and in the Summer of 1851, the testator's widow died, and then the executor took the slaves and other property lent to her for life, and sold the same. The bill was then filed against the executor, and the other children of the testator, except the daughter Ann, claiming an aliquot part of the produce of that part of the property, and also of the principal money, arising from the residue, with interest, since the widow's death, as the share of the daughter Margaret: and the answer insists, that she was not entitled to any...