{
  "id": 8596400,
  "name": "SALLIE D. NICHOLSON v. PLUMMER A. NICHOLSON, Jr., a minor, by his guardian ad litem, JOHN H. BONNER",
  "name_abbreviation": "Nicholson v. Nicholson ex rel. Bonner",
  "decision_date": "1925-09-16",
  "docket_number": "",
  "first_page": "122",
  "last_page": "123",
  "citations": [
    {
      "type": "official",
      "cite": "190 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": "189 N. C., 368",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8654284
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/189/0368-01"
      ]
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  "last_updated": "2023-07-14T22:38:29.672014+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "SALLIE D. NICHOLSON v. PLUMMER A. NICHOLSON, Jr., a minor, by his guardian ad litem, JOHN H. BONNER."
    ],
    "opinions": [
      {
        "text": "Clarkson, J.\nThe late B. B. Nicholson, a lawyer by profession, left a last will and testament dated 5 April, 1904, which provides, \u201cI will and bequeath and devise my entire real and personal property of all kind whatsoever to my beloved wife, Sallie D. Nicholson and our child (unborn), with .one request, etc.\u201d\nThe child referred to at that time, Blake B. Nicholson, Jr., was born and lived to the age of nine years, but died before his father. A second child, Plummer A. Nicholson, Jr., represented herein by his guardian ad litem, John H. Bonner, was born later and survived his father, and is the only heir at law. The testator died in August and his will was probated in September, 1917.\nPlaintiff contends that she is the widow of B. B. Nicholson and took one-half of the real property under the will and Plummer A. Nicholson, Jr., one-half thereof. On the other hand, it is contended by the guardian ad litem of Plummer A. Nicholson, Jr., that in accordance with the statute B. B. Nicholson died intestate as to the infant defendant, having made no provision for him, and that he is the owner and entitled to all of the property of which his father died seized and possessed, subject to the dower of the plaintiff his widow.\nThese contentions require us to interpret the statute, C.. S., 4169, which is as follows:\n\u201cChildren born after the making of the parent\u2019s will, and whose parent shall die without making any provision for them, shall be entitled to such share and proportion of the parent\u2019s estate as if he or she had died intestate, and the rights of any such after-born child shall be a lien on every part of tbe parent\u2019s estate, until bis several share thereof is set apart in tbe manner prescribed in this chapter.\u201d\nB. B. Nicholson having died leaving a widow and an after-born son for whom he made no provision in his will; the statute says that this son shall be entitled to such share and proportion of the parent\u2019s estate as if he had died intestate.\nRules of descent, C. S., 1654:\n\u201cRule 1. Lineal descent. Every inheritance shall lineally descend forever to the issue of the person who died last seized, entitled or having any interest therein, and shall not lineally ascend, except as hereinafter provided.\u201d\nFor definition of \u201cissue\u201d see Edmondson v. Leigh, 189 N. C., p. 201.\nUnder the statute, so far as Plummer A. Nicholson, Jr., is concerned, B. B. Nicholson died intestate, and his real estate of which he died seized will descend to his \u201cissue.\u201d BEis only issue was Plummer A. Nicholson, Jr., and his father having made no provision in the will for him, the will is inoperative and he is the sole issue or heir, subject to the widow\u2019s dower.\nIn the case of Flanner v. Flanner, 160 N. C., p. 126, Lizzie H. Flanner made a will as follows: \u201cI give, grant and devise to my beloved husband, William B. Flanner, all my property of every kind, real, personal and mixed.\u201d The will was made 16 May, 1891. On 7 February, 1892, William B. Flanner, Jr., was born of the marriage and thereafter Lizzie BE. Flanner died. The Court in that case held that no provision was made for the child. See Rawls v. Ins. Co., 189 N. C., 368.\nIn the present case the record states that the estate consists largely of land, there being no personal estate of any value.\nWe think the law clear under the statute. Plummer A. Nicholson, Jr., inherits a fee-simple title to the land, subject to the dower right of plaintiff.\nFor the reason given, the judgment below is\nReversed.",
        "type": "majority",
        "author": "Clarkson, J."
      }
    ],
    "attorneys": [
      "Small, MacLean & Rodman for plaintiff.",
      "John H. Bormer for defendant."
    ],
    "corrections": "",
    "head_matter": "SALLIE D. NICHOLSON v. PLUMMER A. NICHOLSON, Jr., a minor, by his guardian ad litem, JOHN H. BONNER.\n(Filed 16 September, 1925.)\nWills \u2014 Statutes\u2014Descent and Distribution \u2014 Dower\u2014Heirs\u2014\u201cIssue.\u201d\nWhere the father\u2019s will leaves his estate consisting of lands to his wife and \u00bbto a child in ventre sa mere at the time the will was written, and the child thus provided for has been born in the lifetime of the father, but has predeceased him; and another child is born of the marriage and the mother and the child survive the father: Held, under the rule of descent, C. S., 4169, the son unprovided for by the will living at the time of his father\u2019s death, will inherit the real estate of which his father dies seized, subject to the dower of the widow, his mother.\nAppeal by defendant from Bond, J., from judgment rendered 23 July, 1925, from Beaueoet.\nSmall, MacLean & Rodman for plaintiff.\nJohn H. Bormer for defendant."
  },
  "file_name": "0122-01",
  "first_page_order": 226,
  "last_page_order": 227
}