Opinion · Supreme Court of North Carolina
Gillespie v. . Foy
Gillespie v. . Foy, 40 N.C. 280 (N.C. 1848)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1848-12-05
- Topic
- general
Ruffin, C. J. As the land descended to the propositus from bis father and from his sister, who derived her share by descent from the father, it would, if not sold, have descended from John F. Webster to the plaintiff, under the 4th canon of descents, as the only sister of his father and the nearest relation of the propositus ex parte paterna, except the grandmother, who is not within the' proviso to the 6th rule. Wilkerson v.
Citator
UpLaw has not yet analyzed Gillespie v. . Foy. The absence of a flag is not a finding that it is good law.
- Cited by
- 7 opinions
GILLESPIEv. FOY,40 N.C. 280(1848)
DANIEL A. GILLESPIE AND WIFE v. JOHN FOY ET AL.
Supreme Court of North Carolina
(December Term, 1848.)
2. As to the personal estate of B.:Held, that the grandfather or grandmother takes to the exclusion of the aunt.
3. The grandfathers and grandmothers, as to the personal estate, take equally.
The bill is filed by Gillespie against the grandfather and the two grandmothers, and it prays that she may be declared to be entitled to the money which arose from the sale of the land, and also to the whole or a part of the intestate's personal estate.
The questions made as to the personal estate have been long settled. The grandfather or grandmother, being one degree nearer than an uncle or aunt, takes to the exclusion of the latter.Blackborough v. Davis, 1 Wms. Pr., 40;Woodruff v. Wickworth, Pr. in Chan., 527. Indeed, the grandparents are in equal degree with brothers and sisters, and that isPage 199said to be the only exception to the rule that relations in equal degree take equally; for brothers and sisters exclude the grandparents. For that exception Mr. Christian thinks no good reason can be given. 2 Bl. Com., 516, note. But it seems evidently to arise by implication from the provision of the St. 1 Jac. II., ch. 17, sec. 7, which, when the father is dead, makes an equal distribution between the brothers and sisters of the intestate and the mother, which by necessary construction excludes the grandfather or grandmother, who are one degree removed further than the mother. Besides, the brothers and sisters may take as representing the father, under the general provision for representation within the degree of brothers' and sisters' children. For, as the father would take all if living, his children must be entitled to the same when he is dead, except as far as the mother comes in with them under the express provision of the statute, which forms a part of our act of distributions. The plaintiffs are, therefore, not entitled to any part of the personal estate, and the bill must be dismissed so far as it prays for it.
The foregoing declaration would suffice as between the plaintiffs and the defendants. But, as the defendants desire to ascertain how the estate is to be divided between themselves, and the matter is quite plain, the Court has no objection to state that the grandfather and grandmothers take equally — that is, each of them takes one-third (283) part. They take in those proportions because they are in equal degree of kindred to the intestate, and in that case the statute says the estate shall be distributed equally to every one of them. The only exception to that rule is that of father and mother, and that did not originally exist; for the statutes of Charles II. made no distinction between the father and the mother, and therefore they succeed together to the estate of a child, who left no child or widow. That continued to be the law until the beforementioned act of James II., which gave the mother an equal share with their children, when her husband was dead, and by implication excluded her when the husband was living. But there is no such provision between grandfather and grandmother, or between the grandmother and uncles and aunts; and, therefore, the grandmother succeeds equally with the grandfather, and, of course, one grandmother stands upon an equality with the other.
PER CURIAM. Declared accordingly.Cited: March v. Berrier,41 N.C. 525;Allison v. Robinson,78 N.C. 222;Wells v. Wells,158 N.C. 331;Floyd v. R. R.,167 N.C. 59.Page 200
(284)