{
  "id": 11271725,
  "name": "J. W. AUSTIN v. J. F. AUSTIN",
  "name_abbreviation": "Austin v. Austin",
  "decision_date": "1912-11-13",
  "docket_number": "",
  "first_page": "367",
  "last_page": "369",
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      "cite": "160 N.C. 367"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
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      "cite": "118 N. C., 582",
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    {
      "cite": "128 N. C., 225",
      "category": "reporters:state",
      "reporter": "N.C.",
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  "last_updated": "2023-07-14T16:32:58.976002+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "J. W. AUSTIN v. J. F. AUSTIN."
    ],
    "opinions": [
      {
        "text": "Clare, C. J.\nThe testator, R. H. Austin, owned two adjoining tracts of land aggregating about 150 acres, which two tracts he cultivated together as one tract. One tract of land, of 53% acres, which he called the \u201chome place,\u201d he acquired in 1856. And the other, of 96 acres, which adjoined and which he called \u201cthe Thomas Whitley place,\u201d he purchased in 1881.' He devised all-his property, real and personal, to his wife, as long as she lived; and then he provided: \u201cAfter me and my wife is gone, I want my son J. E. Austin to have the north side of the dividing line of the home tract of land, and my ison W. R. Austin to have the south side of said dividing line of said tract of land, to them and their heirs.\u201d- He further provided that upon the same event all his personal property should be \u201cequally divided among my other heirs,\u201d and appointed said J. F. and W. R. Austin his executors.\nThe plaintiffs claim that the testator died intestate as to the \u201cWhitley\u201d tract. If the devise is construed as embracing the whole of the 150 acres, there was a \u201cdividing line\u201d running east and west. But if the devise applied only to the 53% acres which was originally the home tract, then there was no such dividing line.\nThe presumption is against intestacy. Peebles v. Graham, 128 N. C., 225. The burden was on the plaintiffs to rebut that presumption. Blue v. Ritter, 118 N. C., 582. Here there was nothing'to rebut the presumption that the devise covered both tracts under the name of \u201cthe home tract.\u201d Both tracts were cultivated together as one tract; one lies south of the other and the dividing line between the two would give the northern side to one son and the south side to another. The testator remembered all his children and gave those excluded from a share in the land the whole of his personal property, to be equally divided between them.\nIn Woods v. Woods, 55 N. C., 420, tbe devise was of \u201ctbe tract of land wbereon I now live and reside, containing 225 acres, more or less.\u201d Tbe testator bad originally settled on a tract of 225 acres, but bad added several small adjacent tracts, making-in all between four and five hundred acres, wbicb were cultivated together as one tract. It was held that tbe devise carried all tbe adjacent tracts.\nIn Stowe v. Davis, 32 N. C., 431, tbe devise was of \u201ctbe plantation where I now live.\u201d Tbe testator bad two adjacent tracts, known as \u201ctbe borne place\u201d and tbe \u201cBrown place.\u201d It was held that both tracts passed under tbe devise. Tbe facte are almost identical with those in this case.\nIn Bradshaw v. Ellis, 22 N. C., 20, it was held that .a devise of \u201cmy plantation\u201d carried twu tracts half a mile apart, because' they bad been cultivated together as on,e farm. Though here tbe original tract bad been called \u201ctbe home place\u201d and tbe tract acquired in 1881 bad been styled \u201ctbe Whitley place,\u201d still tbe hedgerow between them bad been cut down and tbe two tracts bad been cultivated and treated as one. This, together with tbe presumption against partial intestacy, justified tbe court, in tbe absence of rebutting testimony^ in granting a non-suit. There was no evidence to go to tbe jury, and on tbe face of tbe will tbe court properly held that tbe devise applied to tbe entire tract of 150 acres.\nAffirmed.",
        "type": "majority",
        "author": "Clare, C. J."
      }
    ],
    "attorneys": [
      "B. L. Smith for plaintiff.",
      "B. E. Austin and J er\u00f3me Price for defendant."
    ],
    "corrections": "",
    "head_matter": "J. W. AUSTIN v. J. F. AUSTIN.\n(Filed 13 November, 1912.)\n1. Wills \u2014 Partial intestacy \u2014 Presumptions\u2014Burden of Proof.\nThe presumption of law is against partial intestacy, and tbe one wbo seeks to establish it has the burden of rebutting that presumption.\n2. Same \u2014 \u201cHome Place\u201d \u2014 Adjoining Tracts of Land \u2014 Cultivated as One \u2014 Devise of Home Tract \u2014 Evidence\u2014Nonsuit.\nA testate had acquired two adjoining tracts of land at different times; the first he called the \u201chome place\u201d and the other by a different name, but cultivated them together. He devised \u201cthe northern side of the dividing,line of the home tract of land\u201d to one of his sons, and \u201cthe south side of the dividing line of said tract\u201d to another of his sons, and provided for the others of his children by bequests of his personalty: Held, by the devise of the \u201chome tract\u201d both tracts passed to his two sons to be divided as indicated; for there being no further evidence, the presumption is against intestacy as to the second tract of land acquired by the testator, and a judgment of nonsuit upon .the evidence was properly granted.\nAppeal by plaintiff from 0. S. Allen, J., at March Term, 1912, of Stanly.\nThe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.\nB. L. Smith for plaintiff.\nB. E. Austin and J er\u00f3me Price for defendant."
  },
  "file_name": "0367-01",
  "first_page_order": 407,
  "last_page_order": 409
}