{
  "id": 8685196,
  "name": "PAMELA A. GWYN against RICHARD GWYN, EX'R, AND OTHERS",
  "name_abbreviation": "Gwyn v. Gwyn",
  "decision_date": "1853-12",
  "docket_number": "",
  "first_page": "145",
  "last_page": "148",
  "citations": [
    {
      "type": "nominative",
      "cite": "1 Jones Eq. 145"
    },
    {
      "type": "official",
      "cite": "54 N.C. 145"
    }
  ],
  "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": [],
  "analysis": {
    "cardinality": 306,
    "char_count": 5576,
    "ocr_confidence": 0.364,
    "sha256": "6e63fd6b8792b35afbebe0323f89032d08f7952f1a0e11d7c632316e71c45433",
    "simhash": "1:a660ecb48af4e7ce",
    "word_count": 1019
  },
  "last_updated": "2023-07-14T18:02:37.824767+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "PAMELA A. GWYN against RICHARD GWYN, EX\u2019R, AND OTHERS."
    ],
    "opinions": [
      {
        "text": "Nash, C. J.\nThe bill is filed to procure a judicial exposition of the will of Littleton A. Gwyn. The testator devises to his wife, the complainant, the tract of land on which he lived, describing the metes and bounds. In the same clause, is the following bequest: \u201c In addition to what the law gives her, of my personal estate, I will her the bureau, &o.\u201d The will bears date in 1848, and the.testator died in July 1853. By the a\u00f3t of 1835, ch. 10, s. 1st, where a man died intestate, leaving no issue, his widow was entitled to one-third of Ms personal estate. In 1852, another act was passed upon the subject; therein it is provided, that hereafter, when any person dies intestate, \u201cpossessed of personal estate, leaving a widow, but having no child oy children, nor any issue of the same, one-half of said estate shall be allotted to said widow.\u201d The testator has left no doubt as to his intent and wishes in the bequest to his wife: he desired her to have that portion of his personal estate to which she would be entitled under the law regulating the distribution of.sucb property. Being a man of large estate, he thought that her share, under the law, would be an ample provision. That such was his meaning, is confirmed by the manner in which he speaks of the devise of the land to his wife; he calls it \u201c the dower \u201d land, as if she were to claim it by her right of dower. A doubt was suggested, whether she can claim under the will any of the personal property but the unimportant articles ifaeluded in the words, \u201cI give her the bureau, &c.\u201d The intention of a testator, gathered from the will itself, is the leading rule in the construction of wills. Being very clearly of opinion, that the testator intended to give to his widow, what the law would have secured her in case of his having' died without a will, the doubt above stated cannot exist, for he- gives those articles \u201cin addition\u201d to her distributive share.\nThe only question in the case is, under which act, that of 1835, or of 1852, is her distributive share to be allotted to her ? The will was made in 1848, at which time the rule of distribution, in a ca\u00e9e of intestacy, where there were no children or the issue of such, was one-tbird of the personal property to the widow. The act of 1852, in such ease, gives her one-half. It is common and familiar learning, that a will is ambulatory until the death of the testator, and by the act of 1844-5, ch. 3, s. 3, it is provided, that \u201cevery will shall be construed with reference to the real and personal estate comprised in it, to speak -and take effect, as if it had been executed immediately before the death of the testator or testatrix, unless a contrary intention shall appear by the will.\u201d\nThe will of Mr. Grwyn, then, must be considered as having been executed by him in 1853, immediately before his death, as there is nothing in it to control this legal intent.\nIt is true, this case does not come within the letter of the act of 1852, because there is no intestacy, but most clearly within its scope. The testator, as before said, in making his bequest, must be considered as executing his will immediately before his death, and with reference to the rule of distribution, as then existing: as saying, I give my wif\u00e9 that portion of my personal property, which the law, as it now stands, secures to her in a case of intestacy. What portion of the personalty did the law then secure to a widow in a case of intestacy ? \u25a0 One-half; and to this portion of the personal property, the plaintiff is entitled \u2014 and, in addition to that portion, the law also gives her a year\u2019s allowance : this is also embraced in the bequest, and to it she is entitled.\nIt is clear, that the widow, taking the land\u2019under the will, is entitled to the crop growing upon it at the time of the testator\u2019s death. Tayloe v. Bond, Bus. Eq. 5. The proviso in the act of 1852 has no application. The testator could not have contemplated a dissent by the widow, as he has made for her a more ample provision than the law would have allowed her; this is shown by the fact of the bequest of the small articles which she would have lost by a dissent-.\nIf required, there must be a reference to the Master, to take an account of the personal estate of Littleton A. Gwyn, which has come to the hands of the defendant, and- of its administration, and also of the value of the plaintiff\u2019s year\u2019s provision.\nThe' case is retained for further directions;",
        "type": "majority",
        "author": "Nash, C. J."
      }
    ],
    "attorneys": [
      "Morehead, for the plaintiff.",
      "No counsel appeared for the defendants."
    ],
    "corrections": "",
    "head_matter": "PAMELA A. GWYN against RICHARD GWYN, EX\u2019R, AND OTHERS.\nA will of realty and personalty is construed as if executed immediately preceding the death of the testator, unless the contrary appears from the will-itself.\n'Where the testator died without leaving a child,in 1853, having made his will in 1848, and therein devised to his widow in the. following words, \u201cin addition to what the law gives her, of my personal estate, I will her the hureau, &c.\u201d Held, that she took one-half of the personal estate, with the addition of the bureau, &c., under the act of 1852, instead of one-third, under the act of 1835.\nHeld, also, that the widow was entitled to the crop growing on the land at the testator\u2019s death, and to a year\u2019s provision.\n(The case of Tayloe v. Bond, Bus. Eq. 5, cited and approved.)\nCause removed from the Court of Equity, of Caswell county, at Fall Term, 1853.\nLittleton A. Gwyn, the testator, died in July 1853, without leaving a child, or the lawful issue 'of such. The other facts of the ease sufficiently appear from the opinion of the Court.\nMorehead, for the plaintiff.\nNo counsel appeared for the defendants."
  },
  "file_name": "0145-01",
  "first_page_order": 153,
  "last_page_order": 156
}