Opinion · Supreme Court of North Carolina

Patton v. . Patton

Patton v. . Patton, 60 N.C. 572 (N.C. 1864)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1864-06-05
Topic: general

Citator

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Cited by: 1 opinion

PATTONv. PATTON,60 N.C. 572(1864)

JULIA M. PATTON v. JAMES A. PATTON AND OTHERS.

(Winst. Eq., 20.)

Supreme Court of North Carolina

(June Term, 1864.)

1. Where real estate of an inheritance is purchased by a partnership for partnership purposes, and is so used, on the death of one of the partners his widow is entitled to dower.

2. A testator devised land and bequeathed personal estate to sundry persons. By a residuary clause he gives all the rest of his estate, real and personal, to his executors, in trust to sell and divide the proceeds among his wife and children. Then follows immediately this clause: "I direct my executors to keep my estate together and not tohand overany of the devises or legacies until my existing railroad contracts in Tennessee and North Carolina are completed."Held, the last clause has relation only to what is given by the residuary clause.

THE plaintiff filed this bill to recover dower in the lands of which her late husband, William A. Patton, died seized and possessed.

(573) There was no controversy except about a piece of land, called the tanyard lot, and some tracts of land devised to her late husband by James W. Patton, deceased.

The material facts respecting the tanyard lot are: In 1861 William A. Patton, Washington Morrison, James A. Patton, and Samuel G. Kerr formed a partnership for the purpose of tanning leather, manufacturing leather into shoes, etc. William A. Patton was the owner in fee of a piece of land conveniently situated for carrying on the business of the firm. He conveyed three-fourths of it to three other partners, retaining the other fourth, and each partner put his fourth into the partnership as part of his stock, and the whole piece of land was used for the purposes of the firm during its continuance. As to the other subject of controversy, James W. Patton devised several town lots and tracts of landPage 373to his son, W. A. Patton, in fee, and bequeathed to him some slaves. He devised and bequeathed many other town lots and tracts of land and slaves to his wife and children, other than William A.

The will then proceeds as follows: "All the rest and residue of my estate, real and personal and mixed, wherever situate, including land, negroes, chattels, and every interest, legal and equitable, I will, devise, and bequeath to my executors hereinafter named, and such of them as act, and the survivors of them, in trust to be sold at public or private sale, as they may judge best, and the lands in tracts or parts of tracts or lots, as they may from time to time judge best, and on such terms as they may determine for the interest of the estate, and out of the proceeds of the sales and collections of the debts due to me pay all debts owed by me, and the surplus of said funds to pay over to and distribute equally between my said wife, Henrietta Kerr Patton, my sons James A. Patton, William Augustus Patton, Thomas W. Patton, and my daughter, Frances L. Patton. I direct my executors to keep my estate together, and not to hand over any of the devises or legacies until my existing railroad contracts in Tennessee and North Carolina are completed"; (574) and after giving some practical directions respecting his railroad contracts, the testator says: "And after the said railroad contracts are completed, the various legacies and devises herein contained shall take effect. But, in the meantime, the provisions herein made for my wife shall take effect at once, or such part thereof as she desires," and "if for any cause my executors should think it necessary to sell one or more of the slaves directed to be sold, even before said railroad contracts are completed, for bad conduct or other cause, they are at liberty to do so." The testator, James W. Patton, died in 1861, and W. A. Patton died in 1863.

Merrimon for plaintiff.No counsel for defendants.

PEARSON, C. J.

The right of the plaintiff to dower in the tanyard lot is settled bySummey v. Patton, post, 601. The lot having been sold by the surviving partners, there will be a reference to fix the amount to which she is entitled absolutely, according to the ratable value of her life estate.

We are of opinion she is also entitled to dower in all of the land acquired by her husband under the will of J. W. Patton, except the tracts or parcels of land which pass to the executors under the residuary clause, in trust to be sold by them, and the proceeds of sale divided equally among his wife and children. A devise operates as a conveyance. The land passesdirectlyfrom the devisor to the devisee, and thePage 374executor takes no estate or interest in it. For this reason the lands given specifically to the wife and children do not come within the operation of that clause which directs the executor "to keep my estate together, and not tohand overany of the devises or legacies until my existing railroad contracts in Tennessee and North Carolina are completed." (575) In reference to land specifically given, the words "not to hand over" can have no application whatever. Indeed, apart from this principle growing out of the essential difference between a devise and a legacy, we should incline to the opinion that by a proper construction this restriction only applies to the property contained in the residuary clause. It is a part of that clause, and is naturally confined to the property therein disposed of, to say nothing of the unreasonableness of the supposition that it was the intention to tie up his whole estate, real and personal, until a future event which might not happen for several years, leaving his wife and children in the meantime to starve. If such had been the intention, there surely would have been some provision for their support. And the fact that the land in the hands of the devisees would still remain ultimately liable for the debts of the devisor, in aid of the other portions of his estate towards the completion of the railroad contracts, seems to confirm the soundness of this construction.

Decree for the plaintiff.Cited: Ferguson v. Hass,62 N.C. 115;Mendenhall v. Benbow,84 N.C. 650;Sherrod v. Mayo,156 N.C. 148;Phifer v. Phifer,157 N.C. 229.