Zollicopfer v. Zollicoffer
| Decision Date | 31 December 1839 |
| Citation | 20 N.C. 574 |
| Court | North Carolina Supreme Court |
| Parties | DEN ON DEM. OF GEORGE ZOLLICOPFER ET AL. v. JULIUS H. ZOLLICOFFER. |
1. Where a testator devised a certain tract of land to his eldest son, and the balance of his lands to his widow and other sons, and bequeathed his slaves to his widow, all his sons and his daughter, and in a subsequent clause directed as follows: "At the death of my said wife, all the land and negroes that may fall to her shall return to J. Z." (one of his sons), "and in case of the death of either of my aforesaid children without a lawful heir begotten of his or her body, that then his or her part shall be equally divided among the survivors": It was held, that upon the death of J. Z. without children, subsequent to the death of the widow, all the lands which he acquired under his father's will, both that part which was given to him immediately and that which was limited to him after the death of his mother, went over to his surviving brothers and sister, and that the limitation was not too remote.
2. The case of Jones v. Spaight, 4 N. C., 157, approved.
3. Since the Act of 1784 (see 1 Rev. Stat., ch. 43, sec. 1), for converting estates tail into estates in fee simple, executory limitations of land and chattels are to be construed alike, upon the presumed intention of the testator that in each case the estate should go over on the same event.
THIS was an action of ejectment tried at Halifax, on the last circuit, before his Honor, Judge Saunders, when the jury found a verdict for the lessor of the plaintiff by the consent of the parties, subject to the opinion of the Court upon the following case reserved, to wit:
"George Zollicoffer, by his will, made the 2d of February, 1799, after devising some part of his lands to his eldest son, devises in these words: 'Thirdly, my will and desire is that all the rest of my land except that which is heretofore named shall be divided into four equal lots,and my beloved wife, Ann Zollicoffer, have the privilege of taking her first choice of the said lots, and then that my three sons, George Zollicoffer, James Zollicoffer and Julius Hieronimus Zollicoffer, draw for the remaining three lots by seniority.' By the next clause, the testator directs a division of his negroes, etc., amongst his wife and children, the before-named sons and John Jacob Zollicoffer and a daughter, and then follows this clause: At the death of my said wife, all the land and negroes that may fall to her shall return to James Zollicoffer, and in case of the death of either of my afore-named children without a lawful heir begotten of his or her body, that then his or her part shall be equally divided among the survivors.' After the death of the testator the lands were divided according to the clause of the will first above mentioned, and the premises described in the declaration were chosen by the widow as her lot. In February, 1833, the widow
died; and on 6 April, 1836, James Zollicoffer died, without leaving issue, but leaving the lessors of the plaintiff and the defendant, his brothers and sister, him surviving. After the death of the widow, and before the death of James, to wit, on 19 February, 1833, the said premises were sold by the sheriff under executions issued upon judgments obtained against the said James, and were bought by the defendant and duly conveyed to him. If, upon the foregoing facts, the defendant is seized of the whole, then judgment to be entered for him; but if the lessors of the plaintiff are entitled to undivided fourth parts, then judgment to be entered for them." His Honor being of opinion, upon the above case, for the lessors of the plaintiff, gave judgment for them, and the defendant appealed.
The defendant contends that upon the death of the mother the whole estate in the premises vested absolutely in James for two reasons: The one, that the testator did not intend to include the premises in the limitation over to the survivors; the other, that if he did so intend, the limitation over is too remote.
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Finlayson v. CABARRUS BANK & TRUST COMPANY
...in the event the original donee should die without issue or upon some other contingency. McKay v. Hendon, 7 N.C. 21; Zollicoffer v. Zollicoffer, supra 20 N.C. 574; Threadgill v. Ingram, 23 N.C. 577; Skinner v. Lamb, 25 N.C. 155; Gregory v. Beasley, 36 N.C. 25; Spruill v. Moore, 40 N.C. 284;......
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Woodard v. Clark
...the presumption that the intention of the testator is that in each case the estate should go over on the same event. * * * ' Zollicoffer v. Zollicoffer, 20 N.C. 574. 'At common law the ownership of personal property was absolute and incapable of division into successive interests, but this ......
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Ham v. Ham
...to exclude such as had died without a child, which is absurd." To the same effect are Threadgill v. Ingram, 23 N.C. 577; Zollicoffer v. Zollicoffer, 20 N.C. 574; v. O'Bryan, 4 Rich. Eq. 262, 57 Am. Dec. 727. In Spruill v. Moore, 40 N.C. 284, 49 Am. Dec. 428, the testator gave property to hi......
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Ham v. Ham
...to exclude such as had died without a child, which is absurd." To the same effect are Threadgill v. Ingram, 23 N. C. 577; Zollicoffer v. Zollicoffer, 20 N. C. 574; Lowry v. O'Bryan, 4 Rich. Eq. 262, 57 Am. Dec. 727. In Spruill v. Moore, 40 N. C. 284, 49 Am. Dec. 428, the testator gave prope......