{
  "id": 8652612,
  "name": "W. H. JOHNSTON, Executor v. W. T. KNIGHT, et al.",
  "name_abbreviation": "Johnston v. Knight",
  "decision_date": "1895-09",
  "docket_number": "",
  "first_page": "122",
  "last_page": "124",
  "citations": [
    {
      "type": "official",
      "cite": "117 N.C. 122"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "2 Dev. Eq., 509",
      "category": "reporters:state",
      "reporter": "Dev. Eq.",
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        8694347
      ],
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      "case_paths": [
        "/nc/17/0509-01"
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    {
      "cite": "149 Mass., 243",
      "category": "reporters:state",
      "reporter": "Mass.",
      "case_ids": [
        778463
      ],
      "opinion_index": 0,
      "case_paths": [
        "/mass/149/0243-01"
      ]
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  "last_updated": "2023-07-14T17:25:58.395701+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "W. H. JOHNSTON, Executor v. W. T. KNIGHT, et al."
    ],
    "opinions": [
      {
        "text": "Faircloth, C. J.:\n1. Was the power given by will by Pennina or Nina McDowell, to Mary L. Howell, executed by the will of the latter? When it is not done in express terms, by reference to the power or the subject, then a construction must be given by looking to the whole instrument and the intent- therein, for the intent must govern.\nIf the donee of the power intends to execute, that intention, however manifested \u2014 whether directly or indirectly, positively or by just implication \u2014 will make the execution valid and operative.\n\u201cThe general rule is settled that a general residuary devise will operate as an execution of a power to dispose of property by will, unless there is something to show that such was not the testator\u2019s intention.\u201d Cumston v. Bartlett, 149 Mass., 243. Not only is there nothing to show a contrary intention, but the fact that Mary, the donee, devises to the identical persons and no others, who were designated in Nina\u2019s will, produces the conviction that she was then intending to exercise the authority given by her sister. This might have been a mere coincident, but we think it was intentional and not accidental, among near relations. She could not have devised this property to any one else, and we think that a residuary clause includes all property which the devisor could dispose of.\n2. Do the devisees tak& per stirpes or per capital Nina authorized the division to be made according to the will of her sister Mary, who said, \u201cthat the balance of my estate be equally divided between William T. Knight, Pattie McDowell and the children of Joseph P. and Margaret L. Sugg and the children of Elisha McDowell.\u201d These words require a distribution per capita. This has been the rule since Ward v. Stowe, 2 Dev. Eq., 509, down to the present time, with numerous intervening decisions. The words \u201cequally divided\u201d do not absolutely control in all instances, but yield only when other language of the will or the manifest intent requires it. The argument based on the justice and natural affection does not change the rule. That would disturb other parts of the will. Testators usually divert the line of distribution from that marked out by the law for descent and distribution, and no doubt do so \u201cin the light of surrounding circumstances.\u201d\nJudgment Affirmed.",
        "type": "majority",
        "author": "Faircloth, C. J.:"
      }
    ],
    "attorneys": [
      "Messrs. John L. Bridqers and W. 0. Howard, for defendants.",
      "No counsel, contra."
    ],
    "corrections": "",
    "head_matter": "W. H. JOHNSTON, Executor v. W. T. KNIGHT, et al.\nWill, Construction of \u2014 Power of Disposal by Will, Exercise of \u2014 Per Capita Distribution of Propert/y.\n1. Where the execution by will of a power is not exercised in express terms, by reference to the power or the subject, a construction must be given by looking to the whole instrument and giving effect to the intent therein manifested.\n2. Unless there is something to show a contrary intention on the part of a testator a general residuary devise will operate as an execution of a power to dispose of property by will.\n3. Where the donee of a power to dispose of property by will to certain persons, devises the property to such persons by a residuary clause without referring to the power, the devise will be considered an intentional and not an accidental exercise of the power.\n4. The words \u201cto be equally divided\u201d used in a will, require a distribution of the property per capita among the persons named, exqept when other language of the will or the manifest intent requires otherwise.\nCivil action for the construction of a will, heard before Coble, J., at May Term, 1895, of Yance Superior Court.\nPenninah McDowell left a will, in which was the following clause: \u201cThat, as my estate is given and devised to my beloved sister Mary L ITowell only during her natural life, I give and devise it at her death as follows ; that is to say : To the heirs of my sister Elizabeth 0. Knight, to the heirs of my sister Margaret L. Long, to the heirs of my brother Elisha C. McDowell, and to my beloved sister Pattie A. McDowell. The division of my estate after the death of my said beloved sister Mary L. Howell shall be in accordance with her will to the said parties or their heirs, I leaving the amount to be determined for each individual by her, my sister Mary L.o Howell.\u201d Mary L. Howell left a will, shown in the complaint, in which is the following clause, after making several specific legacies : \u201cAnd the balance of my estate, both real and personal, be equally divided between Wm. T. Knight, Pattie McDowell and the children of J. P. and Margaret L. Sugg, and the children of Elisha McDowell.\u201d\nThe parties named in the residuary clause of M. L. Howell\u2019s will are the same as mentioned in the will of Penninah McDowell.\nHis Honor held that Mary L. Howell executed the power entrusted to and reposed in her by Penninah McDowell, and that the distribution of the residuary estate under her will should be per capita among W. T. Knight, Pattie McDowell and the children of J. P. and Margaret Sugg, and Elisha C. McDowell.\nErom the decree the plaintiff, executor, and the defendants W. T. Knight and Pattie McDowell, appealed.\nMessrs. John L. Bridqers and W. 0. Howard, for defendants.\nNo counsel, contra."
  },
  "file_name": "0122-01",
  "first_page_order": 150,
  "last_page_order": 152
}