{
  "id": 2091754,
  "name": "WILLIAM HASTINGS, Executor, &c. v. JOHN EARP, and others",
  "name_abbreviation": "Hastings v. Earp",
  "decision_date": "1866-06",
  "docket_number": "",
  "first_page": "5",
  "last_page": "8",
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    {
      "type": "nominative",
      "cite": "1 Phil. Eq. 5"
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      "cite": "62 N.C. 5"
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "6 Jones' Eq., 163",
      "category": "reporters:state",
      "reporter": "Jones Eq.",
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        8682006
      ],
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    {
      "cite": "6 Jones' Eq., 163",
      "category": "reporters:state",
      "reporter": "Jones Eq.",
      "case_ids": [
        8682006
      ],
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      "case_paths": [
        "/nc/59/0163-01"
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  "last_updated": "2023-07-14T20:56:26.929259+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "WILLIAM HASTINGS, Executor, &c. v. JOHN EARP, and others."
    ],
    "opinions": [
      {
        "text": "Battle, J.\nThe will of the testator consists of only five short dispositive clauses, yet the plaintiff's counsel suggests several difficulties which have arisen as to the proper construction of it, upon which he asks our advice and direction :\n1. In the first clause of the will the testator gives his wife twenty dollars in money and several personal chattels, absolutely, and three negro slaves, to wit, Tom, Frank and Dilly, for life, making no other disposition of these specifically. In the fifth clause he says: \u201cIt is my desire that the balance of my property be sold, and the money arising therefrom be equally divided amongst all of the legatees named in the will, except the Masons.\u201d The testator\u2019s wife died in his life-time, and it is asked, do the money, personal chattels and negroes fall within the residue, to be sold for division as prescribed in the residuary clause? The answer is, there is nothing restrictive in that clause to prevent it from embracing all the articles, except the money. This is established by many cases, and punong others by Jones v. Perry, 3 Ire. Eq., 200.\n2. The testator died possessed of money, notes, bonds, and other evidences of debts, which are not disposed of by the will, unless they are included within the terms of the residuary clause, and it is asked again, do they pass by it, or do they go to the next of kin as personalty undisposed of? It is settled by several cases that, as they are not the subject of sale by auction, they cannot pass by such a clause. See Pippin v. Ellison, 12 Ire., 61. Scales v. Scales, 6 Jones\u2019 Eq., 163. The money, then, including the lapsed legacy of $20, together with the notes, bonds and other evidences of debt, must be distributed amongst the next of kin of the testator.\n3. The four children of the testator\u2019s deceased daughter, Nancy Pulty, have legacies given to each of them by name in the third clause of the will, while the children of his son John are mentioned as legatees in the second clause as a class, by the description of children. The questions are, do the children of John take at all under the residuary clause? and if they do, is the division to be per capita among the Pully, and the John Earp, children, or do the latter take o.nly one share as a.class.? It is settled that John Earp\u2019s children do take as legatees, and take*per capita with their cousins, the Pully children. See Tucker v. Tucker, 5 Ire. Eq., 82.\n4. The residuary clause directs an equal division \u201camongst all the legatees named in the will except the Masons,\u201d and a question arises, whether the testator\u2019s wife, who died in his life-time, and his son John, who took but a life estate in certain lands and slaves and a small sum of money, are to be regarded as legatees, entitled each to a share of the residue? We can see nothing to exclude them. Another question is then presented, as to what is to become of the wife\u2019s share of this residue, which lapsed by her death in the testator\u2019s life-time. For the reasons given by us in the case of Winston v. Webb, ante p. 1, the wife\u2019s share of the residue cannot go to the other residuary legatees, but must go to the next of kin of the testator. The consequence is, that the residue must be equally divided, per capita, amongst John Earp, his children and the Pully children, reserving a share for the wife, which, having lapsed, is to be distributed according to law among the next of kin.\nIn the second clause of the will, the testator lends to his son John, for life, three negroes which he had put into his possession, and at his death to be equally divided between his and his sister Nancy Pully\u2019s children, adding \u201c the increase from the above named negroes, since they have been m possession of my son John, I wish to be divided between his children that may be'livinir at his death.\u201d The counsel for some of the defendants suggests a doubt as to the proper construction of the clause. The question put is, does the increase belong to John for life by implication, or is it undisposed of in that clause, so as to go into the residue mentioned in the last clause? We answer that John cannot take it, because personal chattels are never so taken, by implication, under a will. White v. Green, 1 Ire. Eq., 46. ]t follows that it mffst fall into the residue, to be disposed of in the manner which we have herein before declared.\nLet a decree be drawn in accordance with this opinion, directing such accounts as may be needed, &c.\nPer Coriam.\nDecree accordingly.",
        "type": "majority",
        "author": "Battle, J. Per Coriam."
      }
    ],
    "attorneys": [
      "No counsel in this court for the complainant.",
      "Haywood and Rogers, for the defendant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM HASTINGS, Executor, &c. v. JOHN EARP, and others.\nA testator gave to his wife money, slaves, &c., and afterwards, by a residuary-clause, directed \u201c that the balance of Ms property be sold, and the money arising therefrom be equally divided amongst all the legatees named in this will, except the Masons;\u201d Held-.\n1. That the residuary clause included such articles in the lapsed legacy as are the subeets of sales at auction, but not such ai tides (either lapsed or otherwise undisposed of,) as are not subjects of such sales.\n2. That persons referred to in other parts of the will only as \u201c children of\u201d &c., are included in such residuary clause equally with persons aetucdly named in such parts.\n?. That the division directed by the residuary clausejjis a division per capita.\n4. That the word \u201clegatees\u201d in the residuary clause included the wife, and that her share in the residir\u00e9 having lapsed does not go to the other residuary legatees, but is undisposed of, and goes to the next of kin.\nA bequest, that certain chattels \u201cin the possession of my son John shall be.divided between his children that may be living at his death,\u201d does not, by implication, confer a life estate upon John, but such interest for life falls into the residue.\n(The cases, Jones v. Perry, 3 Ire. Eq , 200; Pippin v. J\u00edllison-, 12 Ire., 6,1; Seales v. Scales, 6 Jones\u2019 Eq., 163; TueTcer v. Tucker, 5 Ire. Eq., 82; Winston v. Webb, ante p. 1, and WMte v. Green, 1 Ire. Eq., 45, cited and approved.)\nOriginal Bill, filed to Fall Terra, 1864, of the Court of Equity for Johnston county, in order to obtain instructions upon a will. At the same term the cause was set for hearing, and transferred to this court.\nThe opinion contains a sufficient reference to the facts.\nNo counsel in this court for the complainant.\nHaywood and Rogers, for the defendant."
  },
  "file_name": "0005-01",
  "first_page_order": 13,
  "last_page_order": 16
}