{
  "id": 8693414,
  "name": "W. D. PRUDEN v. W. C. PAXTON and others",
  "name_abbreviation": "Pruden v. Paxton",
  "decision_date": "1878-06",
  "docket_number": "",
  "first_page": "446",
  "last_page": "450",
  "citations": [
    {
      "type": "official",
      "cite": "79 N.C. 446"
    }
  ],
  "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": "3 Jones, Eq., 484",
      "category": "reporters:state",
      "reporter": "Jones Eq.",
      "case_ids": [
        8695673
      ],
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        "/nc/56/0484-01"
      ]
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    {
      "cite": "3 Jones, Eq., 484",
      "category": "reporters:state",
      "reporter": "Jones Eq.",
      "case_ids": [
        8695673
      ],
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      "case_paths": [
        "/nc/56/0484-01"
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  "last_updated": "2023-07-14T18:15:31.489401+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "W. D. PRUDEN v. W. C. PAXTON and others."
    ],
    "opinions": [
      {
        "text": "Byhum, J.\nThis is an action for the recovery of land, and the right of the plaintiff to recover depends upon the construction of the last will and testament of Richard Pax-' ton.\nThe testator first devises and bequeaths to his wife, Elizabeth, his dwelling house and lot in the town of Edenton for her life and then to be disposed of among the children at her death as she may think best. It is conceded that this devise exceeds in value her dower right in all the real estate of the testator. After other bequests, follows the clause of the will we are called upon to construe, to wit, \u201c Item \u2014 I give, devise and bequeath all my other property of every description to my dear wife and beloved children, to be divided among them according to law.\u201d And the wife is appointed executrix. The residue of the estate embraced by this clause of the will consisted of some personal property and a tract of land, known as the \u201c Paxton farm.\u201d After the testator\u2019s death the interest of the widow in this land was sold under an execution against her for debt, and purchased by the plaintiff who brings this action to recover possession of such interest in the land as she derived under the aforesaid clause of the will. The defendants are the other devisees and those claiming under them. Their de-fence to the action is, that by the proper construction of the will, the widow is only entitled to dower in the land, or such an estate as the law would give her, had the husband died intestate; and that inasmuch as she never applied for' dower or had it assigned to her, she was seized of no estate in the land which was the subject of levy and sale.\nIn expounding a will the grammatical construction must prevail unless a contrary intent plainly appears. Jones v. Posten, 1 Ire. 166. Applyingthis rule, the devise here conveys the fee to all as tenants in common unless it is limited .as to the wife by the words, \u201c to be divided according to law.\u201d The will no where shows any intent of the testator that the wife should have only a life estate in the Paxton farm; on the contrary the intent would rather seem the other way, because in a former clause the testator had devised his dwelling house and premises to his wife, and express! y limited the estate to her for life, manifestly in lieu and satisfaction of her right of dower, while in respect of the devise of the residue of his land, no such limitation is made; but on the contrary the wife is put upon the exact footing of the children. No contrary intent therefore plainly appearing, the rules of grammar must determine the construction, and applying these, the will first conveys the fee simple to all the devisees \u2014 wife and children \u2014 and second, prescribes a division of the land and how it shall be made: Thus, 1st \u2014 \u201c I give, devise and bequeath all my other property of every description to my beloved wife and dear children.\u201d This language unquestionably conveys the fee to .all. Then the testator adds, 2nd \u2014 '\u201cto be divided among them according to law.\u201d This language is simply declaratory, not of the quantity of the estate conveyed, but of how the devisees shall hold it, to wit, in severalty, by a division to be made in the mode prescribed by law. The clause in question first creates the estate and then directs a partition in severalty.\nThis case is unlike that of Brown v. Brown, 2 Ire. Eq. 309, and Bost v. Bost, 3 Jones Eq. 484. In the first ease there was a residue of real and personal property as here, but the testator wills it \u201c to be disposed of as the law directs.\u201d It was held that the personalty passed to the next \u2022of kin according to the statute of distributions, and the realty went to the heirs according to the law of descents, because in both 'cases they were the persons whom the law would direct to take if the testator had died intestate. Bost v. Bost was also a case of the construction of a residuary clause in the following words, \u2014 \u201c I will that all the balance of my estate, real and personal, be disposed of as the law directs.\u201d It was held that the widow should have her dower assigned in the mode directed by law in cases \u2022of intestacy.\nThe distinction between these two case\u2019s and the one at bar is manifest and illustrates the correctness of our construction. In the cases cited the law is invoked to designate \u25a0who shall have the estate, while in our case the testator \u25a0himself designates the objects of his bounty and devises the -estate directly to them,; the law is called upon only to divide the estate in severalty. The former are cases of intestacy quoad the residue, while the latter is a case of the devise of the residue, \u2014 where the testator did not, and did not intend to die intestate as to any of his property. If the testator had devised the \u201c Paxton farm \u201d to A and her children to be divided among them according to law, there could have, been not a doubt but that A would have taken the same estate as the children. It is not seen how the case is altered because A happened to be the wife of the testator, and the children, his children.\nWe are therefore of opinion that by the devise the wife became a tenant in fee in common with the children, of an equal part of the land with each of them, and that the plaintiff is entitled to recover accordingly! The Court below having held otherwise, there is error. Judgment is reversed and venire de novo.\nPer Curiam. Venire de novo.",
        "type": "majority",
        "author": "Byhum, J."
      }
    ],
    "attorneys": [
      "Messrs. Gilliam $ Gatling, for plaintiff.",
      "No counsel in this Court for defendants."
    ],
    "corrections": "",
    "head_matter": "W. D. PRUDEN v. W. C. PAXTON and others.\nWill \u2014 Construction of.\n1. In expounding a will the grammatical construction must prevail, unless a contrary intention plainly appears.\n2. A testator, by the first item of his will, devised to his wife real property exceeding in value a life estate in all his property of that character. In the residuary clause of said will he devised as follows \u201cI give, devise and bequeath all my other property of every description to my beloved wife and dear children, to be divided among them according to law Held, that a farm included in such residuary clause passed to the wife and children as tenants in common of the fee.\n(Jones v. Posten, 1 Ire. 166; Brown v. Brown, 2 Ire. Eq., 309; Bost v. Bost, 3 Jones, Eq., 484, cited, distinguished and approved.)\nCivil ActioN tried at Spring Term, 1878, of CiiowaN Superior Court, before Henry, J.\nRichard Paxton died in 1865, leaving a last will and testament appointing his wife executrix. Resides the property specially devised in the will he was seized in fee simple at his death of a certain plantation known as the \u201c Paxton farm \u201d in Chowan county, which was devised by the residuary clause as follows: \u2014 \u201c I give, devise and bequeath all my other property of every description to my beloved wife and dear children to be divided among them according to law.\u201d The interest in the house and lot in Edenton given to his widow, Mrs. E. B. Paxton, for life by the first item of the will largely exceeds in value a life interest in one third \u00a9f all the real estate owned by the testator, and she never claimed or had allotted to her any dower interest in the Paxton farm. In pursuance of a judgment and execution in favor of F. L. Roberts and others, the sheriff levied upon her interest in said farm and sold the same in satisfaction thereof, when the plaintiff became the purchaser, took a deed and brought this action to recover possession of the land. His Honor held that Mrs. Paxton was entitled to a dower interest in said land only, and that having failed to claim that interest before the sale \u25a0to the plaintiff, he acquired no estate in the same by virtue of his deed from the sheriff. Judgment accordingly and appeal by plaintiff.\nMessrs. Gilliam $ Gatling, for plaintiff.\nNo counsel in this Court for defendants."
  },
  "file_name": "0446-01",
  "first_page_order": 462,
  "last_page_order": 466
}