{
  "id": 11273639,
  "name": "J. C. HALLYBURTON and others, Exr's, v. JOHN CARSON, Ex'r",
  "name_abbreviation": "Hallyburton v. Carson",
  "decision_date": "1882-02",
  "docket_number": "",
  "first_page": "290",
  "last_page": "295",
  "citations": [
    {
      "type": "official",
      "cite": "86 N.C. 290"
    }
  ],
  "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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    "simhash": "1:b0d3b575edd01591",
    "word_count": 1606
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  "last_updated": "2023-07-14T17:46:32.041451+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J. C. HALLYBURTON and others, Exr\u2019s, v. JOHN CARSON, Ex\u2019r."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\nThe plaintiffs, as executors of Jacob Har-shaw, prosecute their action against John Carson, to enforce the sale of certain lands alleged to be charged in the testator\u2019s will with the payment of debts and the appropriation of the proceeds to the satisfaction of the residue of a judgment recovered by their testator against the defendant in his two-fold representative capacity, as executor of the said George M. Carson and of William M. Carson, and against A. Burgin as administrator of J. L. Carson.\nThe plaintiffs allege the insolvency of the estates of the other debtors, the exhaustion of the personal estate of the testator, George M., in the course of administration and by the emancipation of his slaves, and the consequent necessity of a sale of the lands devised for that purpose to the defendant.\nThe defendant in his answer insists that large amounts of personal property bequeathed and delivered to various legatees, should be accounted for by them before resort can be had to the devised real estate, and that the land devised to himself is not specifically charged; and\" is liable only to contribute its ratable part to pay the testator\u2019s indebtedness.\nThe other devisees and legatees come in and by their answer controvert the claim of the executor, and insist that the undescribed lands mentioned in the last clause of the will, are primarily charged with the debts, and the authority and direction therein given to the defendant to make the sale for that purpose, are not revoked by the modification made in the codicil.\nIn this state of the pleadings, the defendants,, other than the said John Carson, move the court for an order requiring him, as executor, to sell the lands comprehended in the last clause of the will, and apply the proceeds to the indebtedness of the testator, and that he account for the rents and profits received by him since he took possession \u2014 there being no personal property left.\nThe court refused to so adjudge, being of opinion that the provision for the sale in the will had been revoked in the codicil, and that the primary liability did not rest upon those lands.\nThe appeal from this ruling brings up, as the only question in the case, the construction of the testator\u2019s will, as modified in the codicil, in its application to the lands referred to.\nThe testator, whose will was executed in 1857, devises different tracts of land to his several nephews named, and among others to his nephew John, the defendant, the tract whereon he then resided, and bequeathes certain slaves to him, and to the testator\u2019s nieces, and concludes as follows; I do nominate John Carson,' William\u2019s son, executor of this my last will and testament, with power and authority to sell all my estate, real and personal, not hereinbefore mentioned, and collect all debts due me, and after paying all my just debts, to divide the remainder equally between the children of my brother William M. Carson. In testimony whereof, &e.\nIn July, 1863, some of the devisees having died, the testator executed a codicil disposing of the lands given to them, and making other changes in the will, and concluding thus: The lan.d given to Mary and Margaret Carson in item 5 of the within, known as the \u201cLong Field,\u201d is hereby revoked, and I give and bequeath the same to John Carson and his heirs, and I likewise give, bequeath and devise to John Carson all my interest in the out-lands in this county or Yan-cey, and to have all my lands not devised in the within specifically, except my undivided interest in the place known as the \u201cFork Place,\u201d adjoining Elijah Hall, which I devise to Catherine Carson, daughter of William M. Carson, and their heirs. Given under,\u201d &o.\nThe-testator died and his will was offered by the executor for probate and proved the same year.\nHad the original will remained without change, it would admit of but one interpretation, and the residuary fund, the personal estate first and the land afterwards of which it consists, be successively applied to the discharge of the indebt-* edness and in exoneration of the special devises and legacies previously mentioned, and the residue not required for that object, he divided among the children of his brother, William, the executor being one of the number. The codicil indicates a purpose of larger generosity towards the nephew, upon whom he devolves the administration and settlement of his estate in the clause recited therefrom. Not only does he revoke the gift in the fifth clause of the will to Mary and Margaret, daughters of a deceased brother, J. L. Carson,-and devise the \u201cLong Field \u201d tract to John, but he adds to it, \u201c all my (his) interest in the out-lands \u201d in the counties of McDowell and Yancey, and \u201call my (his) lands not devised in the within specifically,\u201d except an undefined interest in the \u201cFork Place,\u201d which he devises to Catherine, daughter of said William. The change made by the codicil in the last clause of the will is radical and pervading.\nIn the will authority is conferred upon the executor to sell the residuary personal and real estate, and a share only in the surplus, if any, produced by the sale and collection of moneys due the estate. In the codicil the residuary estate, less the excepted interest devised to Catherine, is itself directly devised to John, coupled with no condition and burdened with no express charge. The one gives the power of sale to the executor, and directs the appropriation of the proceeds, with a contingent and undivided interest, in common with several others, in so much of the fund as may not be used for the specified purpose; the other vests at once upon the testator\u2019s death a sole estate in the land for the devisee\u2019s own use.\nTo transfer the provisions relating to the sale and contained in the will, and attach them to the devise in the codicil, would be substantially to destroy its value and defeat the manifest purpose of the testator in making the change. \"Where the codicil is in iireconcilable conflict with the will, it must prevail as a revocation, since it is the last expression of the testator\u2019s intent in the disposition of his property.\nWe have not been aided with an argument in behalf of the appellee, but our conclusion as to the proper interpretation of the concluding clause of the codicil and its operation upon the concluding clause of the will, is not at variance with the rule of construction laid down in the authorities cited for the appellant. They establish the proposition that a codicil, which does notin terms revoke a clause in the will, but modifies it in some of its features, entirely consistent with the retention of its other provisions, will only be allowed to have that partial effect, and the clause thus changed will remain as the embodiment and expression of the testator\u2019s intent.\n\u201cIf the codicil is expressed to allow the will in one particular, the presumption is,\u201d says a recent author, \u201c that it confirms and republishes the rest of the will.\u201d O\u2019Hara on Wills, p. 6. \u201cIt is an established rule not to disturb the dispositions of the will further than is absolutely necessary to give effect to the codicil.\u201d 1 Jar. Wills, 343, note.\nThus a change of devisees to whom land is given subject to a rent charge, will not revoke the rent charge, but the substituted devisee will take the land cum onere. Becket v. Hardin, 4 M. and S., 1. The object in all cases is to arrive at the intent of the testator and give effect to both instruments when they can operate in harmony. But in the case before us the absolute and unqualified gift in the codicil is incompatible with the disposition of the land made in the will, and must have a revoking efficacy or be itself nugatory. The undisposed of lands with debts collected were to constitute a fund for the payment of the testator\u2019s liabilities; they are in the codicil (with the reservation mentioned) divested of any charge, as is the \u201cLong Field,\u201d directly given to the devisee. These provisions cannot stand together, and we therefore sustain the ruling of the court as to the legal effect of the codicil in this particular.\nThere is no error, and this will be certified to the superior court of McDowell*\nNo error. Affirmed.",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Messrs. W. H. Malone and P. J. Sinclair, for plaintiffs.",
      "Mr. J. M. McCorkle, for defendant."
    ],
    "corrections": "",
    "head_matter": "J. C. HALLYBURTON and others, Exr\u2019s, v. JOHN CARSON, Ex\u2019r.\nWills \u2014 Effect of Codicil.\nThe testator hy will executed in 1857, devised different tracts of land to nephews \u2014 the tract upon which he lived, among others, to his nephew, John ; and gave his executor power to sell all his real and personal estate not thereinbefore mentioned. In 1868, some of the dev-isees having died, the testator executed a codicil disposing of lands given to them, and making other changes, in which he devises to said John all his \u201cout lands \u201d in a certain locality, and \u201c all his lands not Revised in the within specifically \u201d ; Held that by yirtue of the codicil, the sole estate in the lands mentioned is given to the devisee, John, unconditionally and without charge, and that the same are not primarily liable for the testator\u2019s debts.\nCivil ActioN for construction of a will tried at Fall\u2019 Term, 1881, of McDowell Superior Court, before Seymour, J.\nThe defendant appealed from the ruling of the court below.\nMessrs. W. H. Malone and P. J. Sinclair, for plaintiffs.\nMr. J. M. McCorkle, for defendant."
  },
  "file_name": "0290-01",
  "first_page_order": 306,
  "last_page_order": 311
}