{
  "id": 8682774,
  "name": "JOHN M. KING and others v. E M. LYNCH, Ex'r., and others",
  "name_abbreviation": "King v. Lynch",
  "decision_date": "1876-01",
  "docket_number": "",
  "first_page": "364",
  "last_page": "368",
  "citations": [
    {
      "type": "official",
      "cite": "74 N.C. 364"
    }
  ],
  "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": {
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    "char_count": 7292,
    "ocr_confidence": 0.416,
    "pagerank": {
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    "sha256": "086be5e85e11804d26b8f0d6161360b874781b73a6293a3e555667d88f358ed7",
    "simhash": "1:8023c30a1c853e1c",
    "word_count": 1314
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  "last_updated": "2023-07-14T21:08:39.099656+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN M. KING and others v. E M. LYNCH, Ex\u2019r., and others."
    ],
    "opinions": [
      {
        "text": "PeaesoN C. J.\nWhen the primary purpose and a secondary purpose of a testator conflict, or when from unforeseen events, \u2022the secondary purpose cannot be carried into effect, without \u25a0defeating the primary purpose, the secondary purpose must ..give way \u2014 for illustration, see Lassiter v. Wood, 63 N. C. Rep. 360.\nWe refer to this case for illustration, because in tbe application of tbe general rule, every case must, like tubs, stand on its own bottom.\nWhile agreeing with bis Honor as to tbe general rule of construction, we differ from him in regard to its application to our case. Tbe only purpose of the testator -was to make an equal division of bis estate among bis children and grand children, considering each to have received advancements, as \u25a0set down in his booh. So tbe equality is made to depend upon bis books, in which be made entries and which is referred to in bis will.\nThus it is seen that the testator bad no primary and secondary purpose, or \u201c general and particular intent.\u201d He bad only one intent, to divide what he owned at his death among his children, and grand children taking the place of parents deceased equally, according to the amount he had put down in his book. Upon the face of the will, the land deeded to Jonathan and John, not being entered in \u201c the book \u201d cannot be taken into the account.\nGoing outside of the will, and putting. ourselves as near as may be in the position of the testator wdien he made the will, wo are not able to account for the fact that the testator does not charge Jonathan and John with the lands for which he had given them deeds in 1854, upon \u201c his book of account,\u201d except on the ground, that in consequence of one and then the other living with him, and acting as his general agent and overseer for many years, up to the time of his death, he intended the land as compensation, and not as an advancement, or he intended to make a gift and not an advance to his favorite sons. It was his estate, why should he not dispose of it as he pleased? \u201cHis book of accounts of advancements\u201d dates back to 1850, itemizes and dates each advancement, charges John and Jonathan with certain advancements at dates prior and subsequent to the date of the deeds, but does not charge them with land, one $8,000 the other $4,000.\nThis cannot be taken as an omission \u2014 an act of forgetfulness. The value is too large to have been overlooked.\nThere is error. This will be certified.\nPer Curiam. Judgment reversed.",
        "type": "majority",
        "author": "PeaesoN C. J."
      }
    ],
    "attorneys": [
      "Smith ds Strong, for the appellants.",
      "Battle, Battle <& Mordecai, contra."
    ],
    "corrections": "",
    "head_matter": "JOHN M. KING and others v. E M. LYNCH, Ex\u2019r., and others.\nA .testator bequeathed as fellows: \u201c2. All my property .not otherwise disposed of, to 'be sold at my death and all my children made equal, taking into consideration what I have already advanced or given them, as .will appear by reference to a book where I-have kept their \u25a0accounts thus far,\u201d &c. Before the date of this will, the testator had \u00abgiven to each of two sons, a .valuable tract of land: Held, that the Sand so given not appearing in the testator\u2019s book, .was not to be accounted an advancement, in distributing the surplus so as to make his children equal.\n\u2018\u25a0{Lassiter v. Hood, 63 N. C. Rep. 360, cited and approved.)\nSpecial ProceediNg, originally commenced in tbe Probate 'Court of Rutherford county and removed thence to the \u00ab'Superior Court, where it was heard before Sohenolc, J., at Fall Term, 1815.\nThe plaintiffs filed a petition for an account and settlement '\u00abof the estate of Elias Lynch, deceased, according to the terms \u25a0of the will. The defendant E. M. Lynch, is the executor, and \u25a0the other defendants John Lynch and Jonathan Lynch are \u00a1.heirs at law and legatees, under the will of the testator.\nThe only point decided in this court, is as to the proper construction of the will, which is as follows :\n\u201c In the name of God, Amen.\nI, Elias Lynch, calling to mind the uncertainty of life and \u25a0 certainty of death, do make and ordain this my last will and testament revoking all others, to-wit:\nFirst. I will and bequeath to my beloved wife Frances, six negroes, two men, two women and a boy and a girl, all her \u25a0choice during her natural life, all the household and kitchen .furniture, three horses or mules, her choice, one wagon and ...gear, three plows with all necessary tools for carrying on her .farm, forty head of hogs, six cows and calves, two other cattle for beef, fifteen head of sheep if on hand, one set of blacksmith tools, five hundred dollars-in money with a sufficiency of grain and rufness of all kind to do her and family one year,,, together with all necessaries to make her comfortable for the same time. The money and stock she may dispose of to suit herself; at her death the negroes to be sold by my executor and the proceeds equally divided among my legal heirs.\nSecond. All my property not otherwise disposed of to be-sold at my death and all my children made equal, taking into-.consideration what I have already advanced or given them, as will appear by reference to a book where I have kept their accounts thus far. My daughter, Rebecca Minerva Ring, being dead, the balance that may be due her I give to her children she had by her husband, Noah King, as my account will show what they have already received. My son, Toliver L. Lynch, being dead and left four children, two sons and two daughters, what may be coming to my two grand daughters, children of Toliver L. Lynch, I place in the hands of my son, E. M\u00bb, Lynch, in trust for them and by him to be vested in real estate for their sole benefit and their heirs. I mean their estate thak may be due them on a final seltlement of my estate.\nI appoint my son, Elias M. Lynch, sole exector to this my-last will and testament. In witness whereof I have hereunto, set my hand and seal this 2d day of July, 1858.\n(Signed) ELIAS LYNCH, [Seal.]\n\"Witness:\nRobt. GL Twitty,\nWilliaM L. Twitty.\u201d\n\u201cA codicil to my last will and testament bearing date the-. 2d day of July, 1858.\nBeing desirous of making a small change in the same to-wit: All the property or estate that would be due my daughter, Malinda Whiteside, at my death shall be paid to her six children, Martha, Elliot, Wm. Joseph, Pasey, Richard and Noab \"Whiteside, tliat is, they are to' have their mother\u2019s share *of my estate taking into consideration what she has already .received.\nIn witness whereof I have hereunto set my hand and seal \u2022this 19th day of October, 1850.\nELIAS LYNCH, [Seal.]\nWitness :\nRobt. G. Twittt.\u201d\nOn the 6th day of February, 1854, the testator conveyed to .the defendant, John Lynch, by deed, a tract of land worth .$8,000, at the time of conveyance; and on the 1st day of July, 1854-, he conveyed to Jonathan Lynch a tract of land worth \u2022 $4,000, at the date of conveyance.\nThe defendants were not charged with the vakie of this land in the book referred to in the will, and the same was not mentioned therein.\nThe will was submitted by consent to the construction of \u2022the court, as to'whether in stating the account, the defendants -John and Jonathan, should be charged with the value of the land aforesaid, and upon consideration the court held that they -should be so charged.\nAll other facts necessary to an understanding of the case, -are stated in the opinion of the court. The defendants ap- \u2022 appealed. \u25a0\nSmith ds Strong, for the appellants.\nBattle, Battle <& Mordecai, contra."
  },
  "file_name": "0364-01",
  "first_page_order": 374,
  "last_page_order": 378
}