{
  "id": 8685652,
  "name": "JOHN HATHAWAY and wife v. MARGATET HARRIS and others",
  "name_abbreviation": "Hathaway v. Harris",
  "decision_date": "1881-01",
  "docket_number": "",
  "first_page": "96",
  "last_page": "98",
  "citations": [
    {
      "type": "official",
      "cite": "84 N.C. 96"
    }
  ],
  "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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  "last_updated": "2023-07-14T15:59:35.813846+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN HATHAWAY and wife v. MARGATET HARRIS and others."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\nWe differ with His Honor in the construction he places upon the limitation over, contingent upon-the -death of Henry with a -lawful child, \u201c then -to him and his \u2022heirs,\u201d whereby these words are applied to the child, a-nd in this case, designates the daughter, who takes the fee. -In -our opinion, they refer to the devisee, Henry, and enlarge \u25a0his preceding life estate -into a fee, and for the following reasons-:\n1. In every other part of .the entire clause, (except the \u25a0concluding words) where the pronouns he -and his are used, the reference is .plainly to the son, Henry, and must be so understood, to give meaning to the sentence, \u201c If he (Henry) should d-ie with a lawful child, then to him (Henry) and his \u2018(Henry\u2019s) heirs forever; but if he (Henry) should die without a lawful child, then to his (Henry\u2019s) widow,\u201d &c., plainly 'indicating the presence of the son, in the testator\u2019s mind, in making these contingent dispositions of the estate. It would be unreasonable to separate this brief paragraph from its \u2022context, and^assign it a reference altogether unlike its associates.\n2. In both sections of the clause, the testator speaks of a \u25a0lawful child, avoiding any allusion to its sex, and thus comprehending both a son and a daughter, and yet in the limitation 'Over'\u201cto him and his heirs,\u201d the masculine pronoun is used, which, in strictness, would exclude the daughter, if applied to the more .general preceding word, child.\n3. Frota tire other clauses of the will, it will be seen that he devises lands to-his other sous unconditionally, and without the limitations which fetter the gift to Henry. 'It may' be inferred, though the fact is not stated in the verdict, that the other sons had issue when the will was made, while* Henry had none,-and therefore the testator intended to-place* him upon the same footing with his brothers, if he had issue-living at his -death, and to-- provide* for the- uncertainty of his dying without.-\nThe will having been executed since the act of 1827, i# must be read-' by force of the enactment, as if the testator had added-to the words immediately preceding, the-limitation* the words \u201cliving at the time o-f his death, or born to- him within ten months-thereafter.\u2019* Bat Rev.,-ch. 42, \u00a73.-\nThe declarations\" of the testator were entirely incompetent to vary the construction to be given to his will, and.were properly ruled out. Wig. on Wills, Prop. 6; But they become immaterial, as our interpretation of the testator\u2019s? intent, derived from the language he employs, is,-that which\u00bb the proposed declarations were intended to disclose.\nThere must, therefore,-be judgment for the defendant.\nError.- Reversed.-",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Mr. Jas. E. Moore, for plaintiffs.",
      "Messrs. Latham a*nd Skinner, for defendants."
    ],
    "corrections": "",
    "head_matter": "JOHN HATHAWAY and wife v. MARGATET HARRIS and others.\nConstruction of Will \u2014 Enlargement of Life Estate.\nA testator devises land to his son, Henry, during his life, and if he should die leaving a lawful child, then to him and his heirs; hut if he should die without a lawful child, then to his widow, &c. The devisee after his father's death had issue, a daughter, convejed the devised land, and died : Held, that upon the happening of the contingency, tire life estate of the devisee was enlarged into a fee, the title to -which passed by the deed to his grantee.\nCivil Action to recover land tried at Spring Term, 1880, of Pitt Superior Court, before Avery, J.\nRichard Harris, who formerly owned the land, the title to which is in controversy in this action, died on the 6th day of April, 1836, leaving a will wherein he devises the same in these words : \u201c It is my will that my son Henry have land, (describing its boundaries) and that he have the use of it during his life; and if he should die with a lawful child, then to him and his heirs forever. But if he should die without a lawful child, then to his widow, if living, during her life or widowhood, and after her death or widowhood, to Richard Albert, his heirs and assigns forever.\u201d\nHenry Harris, .the devisee, after his father\u2019s death had issue, a daughter, who is the feme plaintiff, and after her birth he conveyed the land to one Spencer Harris, the husband of one, and the ancestor of the other, defendants, his heirs at law. Henry Plarris and Spencer Harris both died before the institution of the suit.\nThese facts are found in the special verdict, and the question submitted to the court is as to the meaning and legal effect of the recited clause of the will, and whether, thereunder, an estate in fee or for life only, vests in the devisee Henry; if for life, the plaintiffs are entitled to judgment; if in fee, they fail in- the action. The court adjudged that \u2022Henry Harris took only a life estate, and could convey no \u25a0greater estate to Spencer Harris under whom the defendants -claim: and that upon the death of Henry, the land descended to the plaintiff, Margaret Hathaway, who was entitled \u2022to recover. -From-this.judgment defendants appealed.\nMr. Jas. E. Moore, for plaintiffs.\nMessrs. Latham a*nd Skinner, for defendants."
  },
  "file_name": "0096-01",
  "first_page_order": 112,
  "last_page_order": 114
}