Rogers v. Brickhouse

• Court: North Carolina Supreme Court
• Writing for the Court: BATTLE
• Citation: Rogers v. Brickhouse, 5 Jones 301, 58 N.C. 301 (N.C. 1860)
• Decision Date: 30 June 1860
• Parties: SAMUEL ROGERS AND WIFE v. JAMES BRICKHOUSE and others.

5 Jones Eq. 301

58 N.C. 301

SAMUEL ROGERS AND WIFE

v.JAMES BRICKHOUSE and others.

Supreme Court of North Carolina.

June Term, 1860.

Where a testator, at the time of the making of his will, which was in 1852, owned a small piece of land called the “Godwin tract,” to which he afterwards added, by purchase, two adjoining tracts, (a part of one of which latter, had been purchased from Godwin,) and the whole had been cultivated as one farm, it was Held that the whole passed under the denomination of “the Godwin tract.”

A devise of land to be sold and the proceeds divided among the testator's ““heirs-at-law,” there being no context showing that the words were not used in their technical sense, was Held to require a distribution per stirpes.

And it was Held further, that where personal property was embraced in the same clause with land, and there was no reason why a different rule of construction should be applied, the distribution, as to it, should be made in like manner.

By a will made in 1852, a slave born before the making of the testator's will, was Held not to pass under the term “increase.”

CAUSE removed from the Court of Equity of Martin county.

Matthew Brickhouse made his will in 1852, and died in 1857. The plaintiff, Samuel Rogers, and the defendant James Brickhouse, were appointed executors in the said will, and they both were qualified as such. The bill is filed by Rogers and his wife against James Brickhouse and the several legatees under the will, praying that the said James may account for the amount of the estate that came into his hands, and the several legacies may be paid over under a decree of this Court, and the said Samuel for his protection and indemnity as executor and that for his co-executor, asks the advice and direction of the Court upon several questions growing out of the construction of the will.

By the 3rd clause of the said will, the testator devises as follows: “To my daughter, Joanna Brickhouse (who is the wife of the defendant, Jas. Brickhouse,) and her heirs forever, all my lands except the Peter place--the Godwin tract and the great swamp tract; which several pieces I devise to be sold by my executors, and the moneys arising from said sale, to be equally divided among my heirs-at-law.” At the making of the will, the testator owned a piece of land, containing eight and a half acres, which had formerly belonged to one Emily Godwin, and, hence, was called the “Godwin land.” Afterwards, in 1855, the testator bought of one Saunderson a tract of about 200 acres, and afterwards, (in the year 1857,) he bought of one Benjamin B. Brickhouse a tract of about sixty acres, one half of which had once belonged to Emily Godwin. These two last mentioned tracts adjoined each other, and were only separated from the 8 1/2 tract by a public road, and the three tracts were occupied and cultivated as one tract with the same gang of hands, under the same superintendence.

James Brickhouse and his wife claimed that all the said land, except the 8 1/2 acres, passed to her, whereas, the several parties defendant coming in under the description of heirs-at-law, claim that the whole of these three tracts fall under the denomination of the “Godwin land,” and must be sold for the benefit of the fund in which they are interested. The plaintiff prays the advice of the Court on this point.

A further question arises under this clause, which is: whether the money, arising from the sale of this excepted land, is to be distributed per stirpes or per capita.

Also in the 9th clause, the testator devises and bequeaths the residue of his estate to be sold and the proceeds equally divided among his heirs-at-law, and the same question, as to the mode of distribution, is made as to both the real property and personal property contained in this clause.

By the 5th clause of the will, the testator bequeaths as follows: “I give and bequeath to my grandaughter, Ann Cahoon, a negro girl, named Hasty, and her increase.” At the time of the making of the will, Hasty had one child, about 18 months old, which was not named in the will, and has had no other before or since. The bill states that Ann Cahoon claims this child of Hasty under the above bequest, and that the others insist that it must be sold under the said ninth clause of the will, and he asks that this conflict may resolved by the Court so as not to prejudice the executors.

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