{
  "id": 8690268,
  "name": "JOHN A. PLESS against JAMES A. COBLE AND OTHERS",
  "name_abbreviation": "Pless v. Coble",
  "decision_date": "1859-12",
  "docket_number": "",
  "first_page": "231",
  "last_page": "233",
  "citations": [
    {
      "type": "nominative",
      "cite": "5 Jones Eq. 231"
    },
    {
      "type": "official",
      "cite": "58 N.C. 231"
    }
  ],
  "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 Ired. Eq. 245",
      "category": "reporters:state",
      "reporter": "Ired. Eq.",
      "case_ids": [
        8681753
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/37/0245-01"
      ]
    },
    {
      "cite": "3 Ired. Rep. 200",
      "category": "reporters:state",
      "reporter": "Ired. Rep.",
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T17:00:36.855594+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN A. PLESS against JAMES A. COBLE AND OTHERS."
    ],
    "opinions": [
      {
        "text": "Battle, J.\nThe residuary clause of the will, as to the construction of which, we are called upon to give an opinion, is expressed in such vague and indistinct terms, that it is difficult to ascertain the purpose which the testator had in view. The fund is directed to be divided equally between his son Adam and his daughter, Malinda, and then lie says \u201cmy will and desire is, that my daughter Malinda\u2019s equal part in this last devise to her bodily heirs, equally to be divided between them,\u201d <fec. Does the testator mean by this that his daughter\u2019s half of the surplus, shall not be enjoyed by her at all, but shall be equally divided between her bodily heirs, or does he intend that she shall have it for life, with remainder to them ? and, if so, will the rule in Shelly\u2019s case apply so as to give her the absolute interest? The language is undoubtedly obscure, but we cannot believe that the testator intended to deprive his daughter of what he calls her \u201cequal part;\u201d if \u2022so, why did he direct an equal division between her and his son Adam, and call one share her part? If he intended it for her \u201c bodily heirs,\u201d he would have been more likely to have said that the fund should be divided into two equal parts, of which h'is son Adam should have one, and his daughter Malinda\u2019s bodily heirs or children, should have the other. Such language would have been clear and explicit, and would have left no doubt of the testator\u2019s meaning to exclude his daughter, in favor of her children.\nOur opinion, then is, that the daughter was intended to take, and does take, one half of the surplus mentioned in the residuary clause of the testator\u2019s will. The question, then arises, whether she tabes it absolutely, under the operation of the rule in Shelley\u2019s case, or only for life, with remainder to her chil-' dren; and, upon that question, the latter is, we think, the proper one. The provision that the fund is to go to the daughter\u2019s \u201c bodily heirs equally to T>e divided between them,\u201d prevents the application of the rule in Shelley\u2019s case, as is now well settled by authority. See Swain v. Roscoe, 3 Ired. Rep. 200, in which the previous case of Bradley v. Jones, 2 Ired. Eq. 245, is referred to and overruled. See also, Jacobs v. Amyatt, 4 Bro. Ch. Cas. 542, and 2 Rop. on Leg. 354-355.\nA decree may be drawn, in which it will be declared that the defendant, James A. Coble, and his wife, Malinda, will be entitled to one half of the surplus of the money mentioned in the residuary clause of the testator\u2019s will, during the life of the said Malinda, and after her death, the same must be equally divided between all the children which she now has, or may \u00a1hereafter have.\nPer Gotham, Decree accordingly.",
        "type": "majority",
        "author": "Battle, J."
      }
    ],
    "attorneys": [
      "JBusbee, for the plaintiff.",
      "Jones, for the defendant."
    ],
    "corrections": "",
    "head_matter": "JOHN A. PLESS against JAMES A. COBLE AND OTHERS.\nWhere a testator, in a residuary clause, gave the surplus of his property to a son and daughter, in these words: \u201c and my desire is, that such surplus be equally divided and paid over to my son A. and my daughter M.; my will and desire is, that my daughter M\u2019s equal part, in this last devise, to, her bodily heirs, equally to be divided between them,\u201d it was Held that the daughter took an estate for life, with remainder to her children.\nCause removed from the Court of Equity of Stauly County,\nPeter Pless died in the county of Stanly, in the year 1858, leaving a last will and testament which was admitted to probate at May term, 1858, of Stanly county court, and the plaintiff, John A. Pless, qualified as executor of the same. \u2014 \u25a0 This will, after various specific devises and bequests, contains a residuary clause in these words: \u201cMy will and desire is, that all the residue of my estate, if any, after taking out the devises and legacies above mentioned, shall be sold, and the debts owing to me collected, and if there should be any surplus over and above the payment of debts, expenses and legacies, that such surplus shall be equally divided and paid over to my son Adam, and my daughter Malinda, my will and desire is, that my daughter Malinda\u2019s- equal part in this last de-visero her bodily heirs equally to be divided between them, and said legacies to be paid over to the above mentioned within two years from my decease to them, and each and every'of them, their executors, administrators and assigns, absolutely forever.\u201d Malinda, the daughter mentioned in this will, is now the wife of the defendant, Coble, and the bill is filed by the executor for a construction of this residuary clausk\nJBusbee, for the plaintiff.\nJones, for the defendant."
  },
  "file_name": "0231-01",
  "first_page_order": 239,
  "last_page_order": 241
}