Supreme Court of North CarolinaJun 1, 1857
56 N.C. 238 (N.C. 1857)

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(June Term, 1857.)

Where land was devised to a grandson by his paternal grandfather, and the devisee died in the life-time of his father, it was Held that the devisee not being an heir, or one of the heirs, of the devisor, the estate passed to his uncles and aunts on the mother's side as well as those on the side of the father. ( Burgwyn v. Devereux, 1 Ire. Rep. 586, cited and approved.)

CAUSE transmitted from the Court of Equity of Cabarrus county,

Fowle and Jones, for the plaintiffs.

No counsel appeared for the defendants in this Court.

This was a petition for the partition of several tracts of land amongst the heirs-at-law of one Noah Furr, and for the purpose of ascertaining the respective interests of the plaintiffs and defendants in the premises. The land in question was originally owned by Paul Furr, who devised the same as follows: "I give and bequeath unto the bodily and lawful heirs of my son Henry Furr, the tract of land whereon he now lives," (describing it). Previously to the death of the testator, his son Henry Furr had intermarried with Elizabeth Linker, by whom he had one child, the said Noah, Shortly after the death of the testator, Noah died without having had issue, and without brother or sister, or the issue of such. Henry, the father of Noah, then died; and Elizabeth, the mother, also died, and the only question in the case, is whether the brothers and sisters of Henry Furr, (the paternal uncles and aunts of Noah), are entitled to have the proceeds of the land divided amongst them, or whether the brothers and sisters of Elizabeth Linker, (the maternal uncles and aunts), are entitled to participate in the fund, the former class being represented by the plaintiffs, and the latter by the defendants. The facts of the case are not contested by the defendants, who concur in praying a sale for partition, but insist that they are equally entitled with the paternal uncles and aunts of Noah Furr, under the statute of descents.

The cause was set down for hearing on bill and answers, and sent to this Court.

Noah Furr acquired the land in controversy as devisee under the will of his grandfather Paul Furr. At the death of the devisor, Henry Furr, the father of Noah, was living, and would have taken the land as his heir, had he died without making a will; so Noah at the death of Paul, his grandfather, was not "his heir or one of his heirs," and, necessarily, took the land as a purchaser in its general sense, and not in the peculiar mode which, under the statute, is made to have the like effect as a descent. He took by devise, and could not have claimed as heir of his grandfather, had the latter died intestate. This is settled in Burgwyn v. Devereux, 1 Ire. Rep. 586, where the matter is fully elaborated, and the construction of the rule of descent is fixed. It follows that the land must be treated as a new acquisition by Noah Furr, and is transmitted to his uncles and aunts on the mother's side as well as those on the side of the father. Let a decree be made for a sale and partition according to this opinion.

PER CURIAM, Decree accordingly.