Opinion
(December Term, 1864.)
1. The general rule is that property given to legatees, who die in the lifetime of the testator, falls into the residue.
2. If property be given to A. until B., an infant, arrives at the age of 21, and then to B., and B. dies under the age of 21, in the lifetime of the testator, A. has an estate in it until B. would have been 21 if he had lived.
3. If property be given to two as joint tenants, and one die in the lifetime of the testator, by the operation of our act abolishing survivorship in joint tenancy his share falls into the residue.
(635) THIS cause was removed from the Court of Equity of WAYNE to this Court for trial.
The bill alleges that Scarborough Spivey died in April, 1864, having made her will, of which the plaintiff was appointed executor, and that he has qualified as such.
The material parts of the will are as follows:
1. "I give and devise to Zilpha Ballance one negro woman, named Harriet, to her and her heirs forever."
2. "I give and devise to Ruffin Ballance all the cattle that I have at my death, and their increase, till his son, Tawboro Ballance, arrives at the age of 21 years old; and then I give and devise all the cattle and their increase above named to his son, Tawboro Ballance, and his heirs forever."
3. "I give and devise to Francis Allgood Ballance and Allgood Francis Ballance two beds and bedsteads, to them and their heirs forever."
4. "I give and devise to Ruffin Ballance and Aaron Ballance the residue of my property, of every description, not above mentioned, to them and their heirs forever."
The legatees, Zilpha Ballance, Tawboro Ballance, and Francis Allgood Ballance, died in the lifetime of the testatrix. The plaintiff prays the advice of the court as to the effect of these bequests and the death of the legatees last above named. The answers admit the truth of the facts stated in the bill, and the cause was set for hearing on the bill and answers.
Strong for plaintiff.
No counsel for defendant.
All of the property embraced in the legacies which lapsed by the death of the legatees falls into the residue. This is the general rule, and there is nothing to take this case out of its application.
2. The cattle and increase fall into the residue, subject to the estate of Ruffin Ballance, until Tawboro would have been 21 years (636) old, if he had lived.
3. The interest of Francis Allgood Ballance in the beds and bedsteads does not survive, but falls into the residue. The effect of the act of the Legislature abolishing survivorship among joint tenants is to change the rule which had in bequests of this kind allowed the whole to pass to the surviving legatee.
Decree according to this opinion; costs to be paid by the executor out of the estate.
Cited: Mabrey v. Stafford, 88 N.C. 604.
NOTE. — Upon the death (before the testator) of a residuary legatee, the real and personal estate given to him lapses for the benefit of the testator's heirs and next of kin. Robinson v. McIver, 63 N.C. 645.