Stow v. Ward
| Decision Date | 31 December 1826 |
| Court | North Carolina Supreme Court |
| Parties | LEROY STOW v. LEVI WARD et al. |
1. Devise
2. Held, that the real estate must be divided per stirpes, and that Levi Ward takes one-fourth under the devise to him by name, and a share of the fourth devised to the heirs of Sally Ward..
3. Devise "to the heirs of A," they take in the same proportion as if the estate had descended to them from A.
NATHAN FORD by his will devised as follows: "I give to my brother, John Ford, 200 acres of land," and (after several specific bequests) "it is my will, and I do allow, that all the remaining parts of my estate, both real and personal, be equally divided amongst the heirs of my brother, John Ford, the heirs of my sister, Nancy Stow, the heirs of my sister, Sally Ward, deceased, and nephew, Levi Ward." Levi Ward was the son of Sally Ward.
This case, which is reported 10 N. C., 604, came before the Court at this term upon the return of the partition, made according to the interlocutory decree of this Court at June Term, 1825.
When I take a review of the construction which I once thought I was bound by precedents to give this will—precedents which in reality neither bore nor professed to bear upon it, so far as regards the real estate—and the struggles which I made in my own mind to get rid of them, it appears that I must then have labored under something like a delusion; for it was never for a single moment doubted, as far as I can collect from authorities, that where persons come to an estate as heirs, whether by descent as having been in by their ancestor, or by purchase as a newacquisition, under the description of heirs, that they take per stirpes and not per capita; they take it in a representative and collective character, and as to others, are considered as an unit, however they may subdivide and parcel out the property among themselves; they take not individually, but collectively; not separately, but conjunctively. A has a daughter and two granddaughters, daughters of a deceased daughter; his lands descend one-half to his daughter and the other half to his two granddaughters. So if the limitation had been to the heirs of A, making them take as purchasers, they would take the estate in the same proportions, that is, per stirpes and not per capita; in the case of the descent, the lands of which A died seized descend to his daughter and granddaughters, as persons designated by the canon of descent, under the description of...
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