{ "id": 8660915, "name": "RANSOM HAM et al. v. MARY J. HAM et al.", "name_abbreviation": "Ham v. Ham", "decision_date": "1915-03-31", "docket_number": "", "first_page": "486", "last_page": "496", "citations": [ { "type": "official", "cite": "168 N.C. 486" } ], "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": "226 Pa., 602", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 967925 ], "opinion_index": 0, "case_paths": [ "/pa/226/0602-01" ] }, { "cite": "155 Pa. St., 314", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 983294 ], "opinion_index": 0, "case_paths": [ "/pa/155/0314-01" ] }, { "cite": "134 N. C., 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272405 ], "opinion_index": 0, "case_paths": [ "/nc/134/0024-01" ] }, { "cite": "58 N. J. Eq., 349", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 128005 ], "opinion_index": 0, "case_paths": [ "/nj-eq/58/0349-01" ] }, { "cite": "40 N. C., 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2101541 ], "opinion_index": 0, "case_paths": [ "/nc/40/0284-01" ] }, { "cite": "57 Am. Dec., 727", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "20 N. C., 574", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "23 N. C., 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2104266 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/23/0577-01" ] }, { "cite": "5 Am. Dec., 188", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "1 Am. St. Rep., 92", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "25 L. R. A. (N. S.), 1160", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "5 Rich. Eq., 426", "category": "reporters:state", "reporter": "Rich. Eq.", "case_ids": [ 8713904 ], "opinion_index": 0, "case_paths": [ "/sc-eq/26/0426-01" ] }, { "cite": "138 N. C., 447", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "36 N. C., 26", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "6 N. C., 322", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "5 N. C., 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276779 ], "opinion_index": 0, "case_paths": [ "/nc/5/0356-01" ] }, { "cite": "48 Am. Dec., 557", "category": "reporters:federal", "reporter": "Am. Dec.", "pin_cites": [ { "page": "566" } ], "opinion_index": 0 }, { "cite": "64 Pa. St., 1", "category": "reporters:state", "reporter": "Pa.", "opinion_index": 0 }, { "cite": "45 N. C., 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687930 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/45/0221-01" ] }, { "cite": "9 N. C., 613", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277286 ], "opinion_index": 0, "case_paths": [ "/nc/9/0613-01" ] }, { "cite": "5 N. C., 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276789 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/5/0380-01" ] } ], "analysis": { "cardinality": 972, "char_count": 29204, "ocr_confidence": 0.473, "pagerank": { "raw": 2.3538636041003284e-07, "percentile": 0.7935449132362543 }, "sha256": "abfd9ecfda59668fc9e1c551e667a22e0ce48723b246dea2bdcd09c4215b39b0", "simhash": "1:a1265e49062cf68a", "word_count": 5300 }, "last_updated": "2023-07-14T21:05:21.378028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RANSOM HAM et al. v. MARY J. HAM et al." ], "opinions": [ { "text": "Walker, J.,\nafter stating the facts: The plaintiffs are the children and heirs at law of Matthew J. Ham, and claim to be the owners of the land in dispute under the will of their grandfather, Haywood D. Ham, Sr., upon the ground that they are the last survivors of the four sons mentioned in said will, within the meaning and intent of the testator, as expressed therein or as clearly to be implied from the language used by him.\nIt has been settled by several cases decided by this Court, and many in other jurisdictions, that the word \u201cor\u201d last used in the sentence, \u201cbut should \u2018either of the said Matthew, George, Erastus, or Haywood die before arriving at the age of 21, or without children surviving him,\u201d should be read as \u201cand,\u201d so as to require both contingencies to occur before the limitation over should take effect, and to occur during minority, this construction being necessary to save the inheritance to the child or children of any son who should die under age, according to the undoubted intention of the testator. There are two cases decided by this Court which are typical of all those upon the subject. The first is Dickinson v. Blount, 5 N. C., 380, in which it appeared that the testator devised certain land to his grandson, \"William S. Stewart, in fee, with the limitation that if he died before he arrived at lawful age or without leaving issue, the land should go to his other grandson, John Spier, in fee. Judge Taylor said: \u201cAccording to a literal construction of the will, the occurrence of either event would vest the estate in John Spier; but it is evident that such was not the testator\u2019s intention, and this intention ought always to be effectuated when it does not contravene the rules of law.. He could not have intended that the issue of William Spier Stewart should be deprived of the estate if their father died under age; for that would operate to take all from those who appear to have been the principal objects of his bounty; yet such would be the effect of a literal interpretation of his will. His intention seems to have been that the fee should remain absolute in William S. Stewart on the happening of either event, either his leaving issue or attaining to lawful age; or, in other words, that both contingencies, towit, Ms dying under age and without leaving issue, should happen before the estate vested in John Spier. To give effect to this intention, it is necessary to construe the disjunctive or copulatively; and there are various, clear, and direct authorities which place the power of the court to do this beyond all doubt.\u201d And in Turner v. Whitied, 9 N. C., 613, construing a similar devise and approving Dickenson v. Blount, supra, the Court said: \u201cMany cases have established the propriety of so construing it (\u2018or\u2019) in wills of this kind, otherwise the property would be carried over if the first devisee died under the age of 21, though he had left issue, when the intent of the devisor was that both events should happen, the dying under 21 and without issue, before the estate should go over. So that at the age of 21 it was intended that the daughter should have the power of disposing of the estate absolutely, and of making what provision she pleased for her issue, if she should have any; but in the event of her dying before 21, that her issue should not be deprived of the inheritance.\u201d So in Hilliard v. Kearney, 45 N. C., 221, Judge Pearson puts this case: \u201cA gift to A., if he arrives at the age of 21, but if he dies without a child, the property is to go to B.; the intermediate period is adopted, and the gift is absolute at his age of 21,\u201d citing Horne v. Pillars, 2 M. and K., 22. He says, in another part of the opinion: \u201cIt should be borne in mind that this is not a limitation to several children, with a condition that if one or more should die under the age of 21, and unmarried, their shares should go to the survivors or survivor, which is a very usual limitation in wills, and a very reasonable one, for the ownership is restrained only until the child has discretion, or marries, and should be settled in the world. The restraint being a reasonable one, it is probable the testator intended to apply it to all of the children under like circumstances, and the Court incline, in the absence of express words, to imply a succession of survivorships, from the fact that the same reason was applicable to all.\u201d The rule is well expressed in Parker v. Parker, 5 Metcalf (Mass.), 154: \u201cWe think this is one of the cases in which the word \u2018or\u2019 will be construed to mean \u2018and\u2019 in order to carry\u2019the testator\u2019s intention into effect. The manifest object of the testator was, we think, that if the son who was the first object of his bounty should die without leaving children to take after him, and whilst he was under age, so that he could not make any disposition of the property on account of the incapacity of nonage, then the testator intended to make disposition of it himself. But if the son should leave no children, but still if he should arrive at an age at which the law would allow him to dispose of real estate by his own act by deed or will, then it was intended that the gift to him should be absolute, and the devise over would fail.\u201d The Court, in Doebler\u2019s Appeal, 64 Pa. St., 1,-after stating and commenting on the rule, added, that \u201cthis construction has been so conclusively settled as to have become one of the landmarks of the law not now to be shaken.\u201d See, also, Soulle v. Gerard, Cro. Eliz., 525; Janney v. Sprigg, 48 Am. Dec., 557, 566, and note; 19 A. and E. Anno. Cases, pp. 924-5; 30 A. and E. Enc. (2 Ed.), 692; Alston v. Branch, 5 N. C., 356; Lindsey v. Barefoot, ibid., 494; Arrington v. Alston, 6 N. C., 322; Gregory v. Beasley, 36 N. C., 26; Hilliard v. Kearney, 45 N. C., 221; Cheek v. Walker, 138 N. C., 447; China v. White, 5 Rich. Eq., 426; 25 L. R. A. (N. S.), 1160, and note; 1 Underhill on Wills, pp. 447, 504; Phelps v. Bates, 1 Am. St. Rep., 92; 2 Eearne on Rem., sec. 235. Chancellor Kent said in Jackson v. Blansham, 5 Am. Dec., 188, a case like this one: \u201cIt is now to be hoped that the question on the construction of those words in a will may never hereafter be revived,\u201d so sure was he that it had been settled and closed by the courts for many years. We, therefore, conclude, on this branch of the ease, that the share of each of the sons would have vested absolutely and unconditionally in him when he arrived at the age of 21 years, whether he had children or hot, and the same would have been the result if he had children during his minority. Matthew D. Ham was the only son who had children, but his share became absolute when he attained to full age, and the same was the result as to all of the brothers, for they had arrived at full age and died without children, and the share of each vested absolutely on his coming to full age.\nThe next question is whether the plaintiffs acquired any interest in the land by reason of the fact that they survived the other brothers of their father, who died without children, upon the theory that they fall within the class intended to take under these words of the will, \u201cthen his, or their, share shall go to the others that are living, but not to any of my other children.\u201d But we are unable to agree with this view. Both authority and reason are against it. We would be perverting the language of the will should w\u00e9 so construe it, and it would be necessary to write words into the instrument which are not there. It is clear that the testator used the words, \u201cshall go to the others that are living,\u201d in the passage above quoted, in the sense of the survivors of the brothers, which would not include the children of a deceased brother, because the word \u201cothers\u201d plainly refers to them, the brothers, when read with what precedes it, and it is immediately followed by the expression, \u201cbut not to any of my other children\u201d (italics ours), which demonstrates that the word \u201cother\u201d meant only children, and they could only be the sons, as it referred to the children before mentioned in the will That this is the plain, natural, and grammatical construction is hardly arguable. This brings the case directly within the following authorities. It appeared in Threadgill v. Ingram, 23 N. C., 577, that a testator had bequeathed all his personal property to his. four qhildren, to be equally divided between them when his son A. arrived at the age of 21 years; and if one or two or three should die under age, or without issue, all the property to go to the surviving ones forever. A daughter died before her arrival at full age, leaving no children, but after A. had attained 21 years.' It was held that her share went over to the survivors then living, and that a child of a sister, who had died after attaining full age, was not entitled to any part of it. Judge Daniels added: \u201cMust not the. representative deduce his title by averring that his principal was the survivor? Could the representative have any pretense of claim without such averment? \u00a5e think he could not. How could a person claim as heir to a survivor, if the ancestor was not in esse at the death of the first taker, so as' to acquire the character of survivor? The thing appears absurd. It seems to us that no other presumption can arise in this case but that the testator intended a personal benefit to the survivors; and that the superadded words which he has made use of do not repel the presumption.\u201d And the language of Judge Pearson, in Hilliard v Kearney, 45 N. C., 221, is equally emphatic: \u201cThe argument fails, because there are no words showing an intention to give a preference to such of the daughters as died leaving children, except to the extent of making the shares absolute at their deaths. . . . There is this further objection: If the words \u2018other sisters\u2019 do not refer to the death of one, so as to be confined to the survivors, and is allowed to take in the others also, there is nothing to exclude such as had died without a child, which is absurd.\u201d To the same effect are Threadgill v. Ingram, 23 N. C., 577; Zollicoffer v. Zollicoffer, 20 N. C., 574; Lowry v. O\u2019Bryan, 57 Am. Dec., 727. In Spruill v. Moore, 40 N. C., 284, the testator gave property to his daughters, naming them, as the sons are named in this will, and annexed this condition to the gift: \u201cIf either of my daughters should die without lawful issue, then and in that case the survivors or survivor of my said daughters shall have all the said negroes and their increase forever.\u201d The Court, through Chief Justice Ruffin, said: \u201cThere is no doubt that each of the daughters took a vested interest in the slaves, subject to be divested upon her death without leaving issue, and to go over as long as there was one or more of them who could take by survivor-ship.\u201d One of the daughters died leaving a child, and, holding that a child could not represent the parent as a survivor, the Court said: \u201cAlthough one may regret the exclusion of Mrs. Moore\u2019s child, yet the Court cannot help it. It is clear that the testator contemplated and intended to provide for the happening of the death of more than one of his daughters without issue, from the fact that the limitation over is, first, to the survivors, and then to-the survivor in the singular. It is conclusive that the survivorship as to the original parts at least was to continue on until a sole survivorship should happen, after which, of course, there was to be an. end of the matter, as there could be no one else, to take.\u201d That case is almost identical with the case at bar in its facts, as the wording of the limitations in the two wills is practically the same, and one of the four daughters died leaving a child to survive her, while here Matthew J. Ham left several children; but the plurality of issue can make no difference in the construction of the two wills. Holcomb v. Lake, 24 N. J. (4 Zabriskie), 686, is a very instructive case upon the subject and a strong authority in favor of our construction. The Court there said: \u201cIt is suggested that this is an unreasonable construction, because when the testator made his will, both his daughters were married and had children, and that he could not have intended that if one should die before John, the other should take the whole estate, to the exclusion of her deceased sister\u2019s children, which would be the effect, in such a case, of this construction. But the answer to this is, the word \u2018surviving\u2019 is here in the will, put here by the testator; he meant something by it, and that something was that such of his children who survived somebody should take, and such as did not survive should not take.\u201d And it was further said, referring to Lessee of Westbrook v. Romeyn, Baldwin\u2019s R., 196: \u201cThere Abraham Yan Campen conveyed lands to his son Moses, and to the heirs of his body lawfully begotten or to be begotten, and in default of such issue, then to the surviving sons' and daughters of Abraham, in certain shares. And the Court said: \u2018The word then denotes the time when the interest vests in them to be at his (Moses\u2019) death, as well as the person to take, that is, those who shall then be the survivors of Moses.\u2019 That, \u2018as a general rule, words of sur-vivorship relate to the time or event when the thing devised is to be distributed or enjoyed, and not to the time when the will took effect by the testator\u2019s death.\u2019 \u201d The ease of Milsom v. Audrey, 5 Vesey, 465, is, if possible, even more analogous, and the words \u201csurvivors\u201d and \u201csurvivor\u201d were there construed according to their strict literal meaning, although such construction led to intestacy. It has been held that the shares of the third of the four nephews, who had died without issue, belonged exclusively to the survivor of them all, excluding the children of one who had previously died. Lee v. Stone, 1 Mees, and Wels. (Exch.), 673; Leeming v, Sherratt, 24 Eng. Ch. Rep. (2 Hare), 14; Prendergast v. Walsh, 58 N. J. Eq., 349. We find the following clear statement of the doctrine in 1 Underhill on Wills, see. 353 : \u201cThe question arises in disposing of the shares of those who die without issue, whether the children of deceased legatees shall participate or whether it is to go only to the actual survivors of the original class. The plain and strict signification of the word \u2018survivor\u2019 is one who outlives others, and in the above devise the word should receive its strict meaning, excluding the children, and also the next of Icin of those who have died before distribution. This natural meaning will be given to tbe words, and those only will take as survivors who are living at tbe death of tbe others without issue, in the absence of anything in the will clearly showing that the testator has employed the word with any other intention. This rule of construction is applied to a limitation to survivors, though the testator has in fact expressly provided that the children of a deceased legatee shall take, by representation, the share which their parent had enjoyed. Though they may take this, they cannot take the share of one who has died without issue, for that goes to those only who survive the legatee so dying.\u201d\nIt appears from the will that the testator intended that there should be successive survivorships as between his four sons mentioned in the devises, for he directs that, at the death of each under age, or without leaving children to survive him, \u201cthen his or their share shall go to the-others that are living,\u201d and it may be that, in the event named, his will was that the last survivor should take the interests of those who had thus died, though it is not material to decide whether it would go only to the last two survivors instead of the last survivor, as Erastus, who was one of the last two survivors, devised his share to certain persons, who conveyed to the last survivor, Haywood D. Ham, Jr.; but we are sure that there are no words in the will under which these plaintiffs, as children of Matthew J. Ham, can take as survivors, and this is sufficient to dispose of the case, without regard to the manner in which the last survivor of the four sons acquired the sole interest in the property that did not, under the terms of the will, go to the other brothers.\n. We attach no importance to the difference of phraseology in the two devises. The word' \u201cwithout\u201d was clearly omitted before the words \u201cleaving children surviving him,\u201d in the second devise, or the word \u201cbefore\u201d is implied, so that it should be, \u201cbefore arriving at the age of 21,\u201d or \u201cbefore,\u201d or \u201cwithout leaving children surviving him,\u201d for if the son left children, the testator manifestly intended that they should take by descent from their father, though they could not take, as purchasers, under the will. Whitfield v. Garris, 134 N. C., 24.\nThe plaintiffs rely on the use by the testator of the words, \u201cbut not to any of my other children,\u201d which are annexed to the first gift to the four sons; but it is evident that these words were intended- merely to free his meaning of any doubt and to express more clearly his desire that none of his other children, for whom he had amply provided, should further participate in his bounty under the will, and thereby prevent the surviving sons from taking, however much they, \u201cthe other children,\u201d might get by will or descent from a brother whose interest had become indefeasibly vested in him.\nWe may regret that we are forced to the conclusion that plaintiffs can take nothing under the will, as survivors of the four sons, but the meaning of tbe testator is so obvious that we could not decide otherwise. There is no rule of higher obligation in the construction of wills than this, that the language of the testator must govern, unless there are clear indications of a contrary meaning to be found in the instrument, considering it altogether. \"We must take care how we indulge in speculations as to the intention of testators, our province being not to make wills for them as we may think they ought to be, but to interpret fairly and according to established rules of law such as they have made for themselves. A.testator must be his own interpreter when he expresses himself in language free from obscurity and which, as he employed it, conveys a certain and definite meaning, to the exclusion of any other. It may be that if the testator could have anticipated what has actually happened, he would have provided for such a contingency, but he does not appear to have done so, and it is not our duty, or our privilege, to supply the omission by reading into his will something that he did not see fit to put there. Holcombe v. Lake, supra; Bartholomew's Estate, 155 Pa. St., 314; Bender v. Bender, 226 Pa., 602.\n\"We are unable to see any clear indication in this will that the testator did not intend to do just what he, in fact, did, according to the plain meaning of the language he has used, viz., confine his bounty to his surviving son or sons, irrespective of the issue of any deceased child. Mrs. Penny Ham, the widow of the testator, died in 1884, as admitted in this Court; but this cannot affect the result, and only makes the case stronger, if possible, against the plaintiffs. See Holcombe v. Lake, 4 Zab., 690.\nIt is unfortunate that a case of this kind should be tried on demurrer, but we can now see no facts, not stated in the record, which could possibly change the views we have expressed.\nAffirmed.", "type": "majority", "author": "Walker, J.," } ], "attorneys": [ "Robinson & Robinson, W. A. Thompson, and Langston, Allen & Taylor for plaintiffs.", "Dortch & Barham, W. W. Peirce, and M. T. Dickinson for defendants." ], "corrections": "", "head_matter": "RANSOM HAM et al. v. MARY J. HAM et al.\n(Filed 31 March, 1915.)\n1. Wills \u2014 Intent\u2014Interpretation.\nIn construing a will, the word \u201cor\u201d will be given the meaning of tbe word \u201cand\u201d when from tbe language employed in tbe paper-writing it appears that sucb was the testator\u2019s intent.\n2. Same \u2014 \u201cOr\u201d as \u201cAnd\u201d \u2014 Estates\u2014Contingent Remainders.\nIn a devise of lands to the testator\u2019s four sons, \u201cbut should either of them die before arriving at the age of 21, or without children surviving Mm,\u201d the word \u201cor\u201d should be read as \u201cand,\u201d so as to require both contingencies to occur before the limitation over should take effect, and thus save the inheritance to the child or children of any of the sons who should die under age.\n3. Same \u2014 Vested Interests.\nA devise of lands to the testator\u2019s four sons, with provision,' \u201cbut should either of them die before arriving at the age of 21, or without children surviving him,\u201d vests in each of the sons the title to his interest in the lands upon his becoming 21 years of age, without regard to his having or not having children.\n4. Same \u2014 Survivorship.\nA devise to the testator\u2019s four sons, with provision that the lands be partitioned when they attain the age of 21 years,, and upon the death, of each of the sons his share \u201cshall go to the others that are living, but not to any of my other children,\u201d it appearing that the testator had. other living children for whom he had also made provision, does not include within the intent and meaning of the limitation over the surviving child or children of a deceased son, the words \u201cshall go to the others that are living\u201d referring only to the testator\u2019s four sons who are named in the devise.\n5. Same \u2014 Ultimate Survivor.\nIt appearing from a devise of lands to the testator\u2019s four sons that he intended successive survivorships, by directing that at the death of each under age, or without leaving children to survive him, then his or their share shall go to the others that are living,\u201d the question whether the last surviving son, or the last two of the surviving sons, would take the estate, is, under the facts of this case, immaterial, one of the last two having acquired the share of the other by purchase.\n6. Wills \u2014 Separate Clauses \u2014 Interpretation \u2014 Intent \u2014 Phraseology \u2014 Substance.\nA testator in separate items of his will devised, different tracts of land to certain of his sons, with words having substantially the same meaning, but with slightly different phraseology, the first clause providing, by interpretation, a succession of interests in the sons, contingent upon their living longer than the others. Construing the will to ascertain the intent of the testator, it is held, under the facts of this case, that the difference in the phraseology used in the subsequent clause is immaterial.\n7. Same \u2014 Contingent Limitations \u2014 Rule in Shelley\u2019s Case.\nA devise of lands to the four sons of the testator upon contingency that \u201cshould either of the sons die before arriving at the age of 21, or leaving children surviving him, then and in that case his or their share shall be taken and equally divided between those who are living\u201d is construed, under the circumstances of this case and in connection with another and relevant clause of the will, as if it had read \u201cbefore\u201d or \u201cwithout leaving children surviving him,\u201d- and the children of a deceased devisee may only inherit from his own father, and not take as purchaser under the will of the testator.\nAppeal by plaintiff from Connor, J., at August Term, 1914, of WayNE.\n\u25a0This ease, for tbe recovery of land, involves tbe construction of tbe will of Haywood D. Ham, Sr., wbo died on 31 May, 1859. He devised bis borne place, containing 175 acres, to bis wife, Penny Ham, for life, and\u2019 all tbe rest of tbe land of wbicb be died seized and possessed to bis four sons, Matthew J. Ham, George D. Ham, Erastus Ham, and Haywood D. Ham, Jr., \u201cto be equally divided between them, but should either tbe said Matthew, George, Erastus, or Haywood die before arriving at tbe age of 21, or without children surviving him, then bis or their share shall go to tbe others that are living, but not to any of my other children.\u201d Tbe other tract of 175 acres be then devised to bis said four sons, subject to tbe life estate of bis wife, upon substantially tbe same limitations, though there is a slight difference in phraseology, tbe last devise being in these words: \u201cShould either of my sons, Matthew, George, Erastus, or Haywood, die before arriving at tbe age of 21, or leaving children surviving him, then and in that case his or their share shall be taken and divided equally between those that are living\u201d; the words, \u201cbut not to my other children,\u201d being omitted from this clause of-the will. It is alleged in the complaint that, by other clauses of the will, \u201cthe testator made ample and equitable provision for all of his other children, and his widow, Penny Ham, is dead.\u201d\nThe said four sons attained to the age of 21 years and all died without leaving a child, except Matthew J. Ham, who left children. When the four sons were of age, the lands devised to them in their father\u2019s will was partitioned equally- among them, and each of them took possession of the share allotted to him. The partition was made under the following clause of the will of Haywood D. Ham, Sr.: \u201cWhenever the said Matthew, George, Erastus, or Haywood D., shall arrive at the age of 21, the one so attaining age may by petition have a division of the land that I have given them, have bis share set apart in severalty, and the balance to be cast back and remain and continue to be held by the others as tenants in common, and as each one arrives at the age of 21 be may file a petition and have bis share allotted to him, and so may each one as he attains the age of 21 continue to do.\u201d\nGeorge D. Ham died on 30 June, 1887, and his share was divided among the other three surviving brothers, Matthew J. Ham, Erastus Ham, and Haywood D. Ham, Jr. Matthew J. Ham died on 13 April, 1893, leaving children, who are the plaintiffs. Erastus Ham died 6 November, 1893, leaving a will, in which he devised his interest in tbe said lands, both his original and accrued shares, to his brothers and sisters of the whole blood, who sold and conveyed it to Haywood D. Ham, Jr., who died on 26 May, 1914, leaving a will in which he devised to certain of the defendants bis original share in the lands of bis father, which was devised to him, and as allotted to him in the division among the four sons, and that part of said lands which was allotted to Erastus Ham in the original partition, and also in the division of the share of George D. Ham, he claiming to have purchased the same from the devi-sees of Erastus Ham, the said Haywood D. Ham, Jr., having conveyed the part allotted to him in the division of the share of George H. Ham to the children and heirs of Matthew J. Ham, who conveyed to Haywood D. Ham, Jr., the part allotted to them in the division of the share of Erastus Ham, which seems to have been an exchange of the said interests.\nPlaintiffs further allege in their complaint that they are the owners and entitled to the possession of the land described in the complaint, being a part of that willed by Haywood D. Ham, Sr., to his four sons, and which were devised by Haywood D. Hard, Jr., in his will to certain of the defendants. The defendant Mary J. Ham is the widow of Haywood D. Ham, Jr., deceased, and is in possession of all the said lands; \u25a0 defendants Nancy Hill and Mary A. Casey are sisters of the four sons, Matthew, George, Erastus, and Haywood, who are the devisees under the will of Haywood D. Ham, Sr.; the defendants Carrie-Harrell, Bertha Casey, Will Casey, Lou Pearl Edwards, Eva Casey, and S. J. Casey are the children of Ellen Casey, deceased, another sister of the said devisees, the said sisters being the children of Haywood D. Ham, Sr.; and Curtis Howell and Rachel Howell are grantees of Haywood D. Ham, Jr., as to 3 acres of said land. The prayer of the complaint is that plaintiffs be declared to be the owners of the land therein described, and entitled to the immediate possession thereof, and for costs.\nDefendants demurred to the complaint upon the ground that under the will of his father and the deeds executed to him, Haywood D. Ham, Jr., was seized and possessed of the said lands at his death, and by his will they were devised to certain of the defendants, who thereby became and are now the owners thereof.\nThe court held that upon the death of Matthew J. Ham, leaving surviving him the plaintiffs as his children and heirs at law, the share of the said Matthew J. Ham in the division of the lands of Haywood Ham, Sr., \"descended to the plaintiffs as the heirs at law. of said Matthew J. Ham, together with an undivided one-third interest in the share of George D. Ham in the said division of the lands of Haywood Ham, Sr.; that upon the death of Erastus Ham, his share in the division of the said lands of Haywood Ham, Sr., passed by the will of Erastus Ham and subsequent deeds to Haywood D. Ham, Jr., in fee, together with the one-third interest of Erastus Ham in George D. Ham\u2019s share in said division of the lands of Haywood D. Ham, Sr.; that upon the death of Haywood D. Ham, Jr., there being no survivors of tbe brothers, the share of Haywood D. Ham, Jr., in the division of the lands of Haywood Ham, Sr., together with the share which passed to him from Erastus Ham and the one-third interest in George D. Ham\u2019s share in said division, passed under the will of Haywood D. Ham, Jr., to the defendants, and thereupon sustained the demurrer.\nPlaintiffs appealed from the judgment.\nRobinson & Robinson, W. A. Thompson, and Langston, Allen & Taylor for plaintiffs.\nDortch & Barham, W. W. Peirce, and M. T. Dickinson for defendants." }, "file_name": "0486-01", "first_page_order": 542, "last_page_order": 552 }