Opinion
(June Term, 1851.)
The act of 1844, ch. 83, making devises to operate on such real estate as the testator may have at the time of his death, was altogether prospective and did not extend to wills made and published before the time when the act went into operation, though the testator did not die until afterwards, unless there had been a republication of the will after the act went into operation.
APPEAL from Ellis, J., at WARREN Spring Term, 1851.
Ejectment, to recover the lands and tenements mentioned in the plaintiff's declaration. A verdict by consent was given for the plaintiff upon the trial, subject to the opinion of the court upon a case agreed. The case agreed is as follows:
The premises in dispute belonged to Peter R. Davis, under (22) whom they are claimed by both parties. On 2 June, 1836, the said Peter R. Davis, being then entitled to a large real and personal estate, made and published a will in writing, with all the formalities required by law to pass every description of property. The said Peter R. Davis died some time in 1850, without revoking, altering or republishing his said will, and upon his death it was duly proved by the subscribing witnesses in Warren County Court, in which county he resided at the time of his death; and thereupon Stephen Davis, the defendant, and William C. Davis, one of the plaintiff's lessors in this suit, being the executors named in said will, qualified as such. The testator, after the making and publication of his said will, purchased the lands and tenements described in the declaration. The testator died unmarried and without issue, leaving as his heirs at law one brother, the defendant, Stephen Davis, and four sisters, to-wit, Rebecca Williams, who is the wife of William C. Williams; Nancy, Powell, wife of John B. Powell; Elizabeth Pitchford, and Polly Kearney, wife of Edward Kearney, all of whom, with their respective husbands, are the plaintiff's lessors in this suit. The plaintiff claims four-fifths of the lands and tenements described in the declaration as property undisposed of by the said will of the deceased brother. The defendant claims the whole under the residuary clause of the said will. It is admitted that the feme lessors were married to their husbands, named in the declaration, before the death of Peter R. Davis, and that the defendant, Stephen Davis, was in the possession of the premises at the commencement of this suit. The court, being of the opinion that Peter R. Davis died intestate as to the lands and tenements described in the declaration, rendered a judgment in favor of the plaintiff, as follows, to-wit: It is considered by the court that the said plaintiff do recover against the said defendant his said term, yet to come, of and in four undivided fifth parts of the tract of land first described in the declaration, and also his term, yet to (23) come, of and in four undivided fifth parts of one undivided fourth part of the tract of land secondly described in the declaration, and also his said damages and costs of suit. And the said plaintiff prays for a writ of possession, and it is granted to him, etc. From the above judgment the defendant prays an appeal to the Supreme Court, and it is allowed to him.
Eaton for plaintiff.
B. F. Moore for defendant.
The case presents the single question, whether the act of 1844, ch. 83, making devises to operate on such real estate as the testator may have at the time of his death, applies to the will of Peter R. Davis, under whom the plaintiff and defendant claim the land in controversy. It is a well known principle of law that land purchased by a testator after the publication of his will does not pass under it, for the reason that a devise is considered as a species of conveyance, and must therefore operate on a specific subject. The act of 1844 has changed the law in this respect, and after-purchased lands will now pass by devise, provided the will be one on which the act operates. The case states that the will of Peter R. Davis was made and published in 1836, and that he died in 1850. After several devises, the will contains a residuary clause, whereby the testator devises to the defendant "all the rest and residue of my estate of every description," etc. Under this clause, the defendant claims the land in dispute. The plaintiffs are a part of the heirs at law of Peter R. Davis. The case further states that the will was not republished after the purchase of the land. In Battle v. Speight, 31 N.C. 288, the precise question now before us was litigated and decided. It was there settled that the act of 1844 "was altogether prospective" and did not extend to wills made and published before the time when (24) the act went into operation, though the testator did not die until afterwards. If there had been a republication of the will after the purchase of the land, it would have passed. There being no such republication, it did not pass, and as to it the testator died intestate.
PER CURIAM. Affirmed.
Cited: Williamson v. Williamson, 58 N.C. 143.