Williams v. Davis

Decision Date30 June 1851
Citation12 Ired. 21,34 N.C. 21
CourtNorth Carolina Supreme Court
PartiesDOE ON DEMISE OF WILLIAM C. WILLIAMS, v. STEPHEN DAVIS.
OPINION TEXT STARTS HERE

The act of 1844, ch. 83, making devises to operate on such real estate as the testator may have at the time of his death, was altogether prospective, and did not extend to wills made and published before the time when the act went into operation, though the testator did not die until afterwards, unless there had been a re-publication of the will, after the act went into operation.

The case of Battle v Speight, 9 Ire. 288, cited and approved.

Appeal from the Superior Court of Law of Warren County, at the Spring Term, 1851, his Honor Judge ELLIS presiding.

This was an action of ejectment to recover the lands and tenements mentioned in the plaintiff's declaration. A verdict by consent was given for the plaintiff upon the trial, subject to the opinion of the Court upon a case agreed. The case agreed is as follows:

The premises in dispute belonged to Peter R. Davis, under whom they are claimed by both parties. On the 2d day of June, 1836, the said Peter R. Davis, being then entitled to a large real and personal estate, made and published a will in writing with all the formalities required by law to pass every description of property. The said Peter R. Davis died sometime in the year 1850, without revoking, altering or re-publishing his said will; and upon his death it was duly proved by the subscribing witnesses in Warren County Court, in which county he resided at the time of his death; and thereupon Stephen Davis, the defendant, and William C. Davis, one of the plaintiff's lessors in this suit, being the executors named in said will, qualified as such. The testator, after the making and publication of his said will, purchased the lands and tenements described in the declaration. The testator died unmarried and without issue, leaving as his heirs at law one brother, the defendant, Stephen Davis, and four sisters, to wit: Rebecca Williams, who is the wife of William C. Williams, Nancy Powell, wife of John B. Powell, Elizabeth Pitchford, and Polly Kearney, wife of Edward Kearney, all of whom, with their respective husbands, are the plaintiff's lessors in this suit. The plaintiff claims four fifths of the lands and tenements, described in the declaration, as property undisposed of by the said will of the deceased brother. The defendant claims the whole under the residuary clause of the said will. It is admitted that the feme lessors were married to their husbands, named in the declaration, before the death of Peter R. Davis, and that the defendant, Stephen Davis, was in the possession of the premises at the commencement of this suit. The Court being of the opinion that Peter R. Davis died intestate as to the lands and tenements described in the declaration, rendered a judgment in favor of the plaintiff, as follows, to wit: It is considered by ...

To continue reading

Request your trial
2 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT