Opinion
(June Term, 1864.)
1. A testator gives to his wife real and personal property for life, and directs that at her death it should all, real and personal, be sold and the money equally divided among his children. Held, that by the direction to sell the land is converted into personality.
2. One of the daughters of the testator died after the testator, in the lifetime of his widow, leaving a husband surviving. Held, that as her administrator he is entitled to one-seventh of the money arising from the sale of the property given to the widow for life.
ROBERT KINCAID, by his will, gave real and personal property to his wife for life or widowhood, the real property being land owned in fee by the testator, and made divers dispositions thereof, to take effect after the death or second marriage of his widow. Afterwards in 1836, he made a codicil, by which he gave to his wife a negro girl named Adeline, during her life, and at her death Adeline and her offspring, together with Alfred, and the plantation left to his wife, are to be sold for the most that can be got for them at public sale, "and equally divided between my seven children named in this will." "And further, I will and bequeath to my wife during her life my negro woman (595) Sue, and at her death said woman Sue to be sold and the money divided equally between my children aforesaid." Patsy, the deceased wife of the plaintiff John Conly, was a child of the testator, and one of the seven named in the will. She died after the testator, in the lifetime of the testator's widow, and her husband is her administrator.
Merrimon for plaintiff.
No counsel for defendant.
The direction in the will of Robert Kincaid, that upon the death of his wife the land and negroes which he had given to her for life should be sold and the proceeds equally divided among his seven named children, had the effect to convert the real estate into personality, and in the events which have happened the plaintiff J. W. Conly is entitled to one share, as the representative of his first wife, Patsey. Powell v. Powell, 41 N.C. 50; Adams Eq., 150. Patsey had a vested interest in the property given to her mother for life, which upon her death in the lifetime of her mother belonged to her husband as her administrator.
This doctrine is so well settled that it is unnecessary to enter into a further discussion of it.
Cited: Falls v. McCulloch, 62 N.C. 140; Kincade v. Conley, 64 N.C. 390; Benbow v. Moore, 114 N.C. 270.
NOTE. — Vide Britton v. Miller, 63 N.C. 268; Sutton v. West, 77 N.C. 429. A legacy of property, "to be sold at my wife's death and equally divided among all my children," is vested; and therefore the representatives of such children as survived the testator and died before the wife are entitled to shares. Falls v. McCulloch, 62 N.C. 140; see Kincade v. Conley, 64 N.C. 387.