Opinion
(August Term, 1851.)
It is error in a judge to leave it to the jury to decide who were the heirs of a deceased person. That is a question of law for the determination of the court.
APPEAL from Ellis, J., at MECKLENBURG Special Term, 1851.
Ejectment. Plea: Not guilty. The facts are stated in the opinion.
Boyden for plaintiff. (292)
Wilson, Thompson, and Alexander for defendant.
The case is very long and presents many points. Most of them are not stated distinctly, and we prefer to put the decision upon one, in which there is manifest error.
There are some twenty lessors, who claim as the heirs at law of one David Bradford, Jr. David Bradford, Sr., died in 1779, having devised the land sued for, as the plaintiff alleges, to his son, the said David Bradford, Jr.; and to show that, the plaintiff examined one George Erwin, who swore that "said David died without children" (he does not state the time of his death), "leaving two brothers, James and Michael Bradford." He also swore David died in possession of the land, and that the lessors of the plaintiff were the heirs at law of said David Bradford, Jr. He further swore he knew all of the children of the said James and Michael except two whom he had never seen, but he had frequently heard those two spoken of in the family and among the relations as the children of the said Michael and James. He also swore that James and Michael, except two whom he had never seen, but he had ness was the uncle of David, James, and Michael. He also swore that David Bradford, Jr., had sisters and other brothers besides James and Michael. There was no proof of their death.
The defendant moved his Honor to charge "that there was no evidence that any of the lessors of the plaintiff were the heirs at law of David Bradford, Jr., and that the statement of the witness Erwin that they were his heirs at law was not a question of fact but one of law to be decided by the court and could not be proved by a witness in that way."
His Honor refused to give the instruction, but told the jury it was true that who were the heirs at law of a deceased person was a question of law and not one of fact to be proved by witnesses, yet if the (293) jury could collect from the testimony offered in the case that the lessors of the plaintiff were the heirs at law of David Bradford, Jr., they should find for the plaintiff on that point.
In this there is error. His Honor correctly decided that the heirs at law of a deceased person are to be ascertained as a question of law according to the canons of descent in force at time of his death; but he then leaves it to the jury to "collect from the testimony that the lessors were the heirs of David Bradford," thus committing a double error by leaving a question of law to the jury and by leaving a question to the jury in reference to which there was no evidence.
PER CURIAM. Venire de novo.
Cited: Morrison v. McLaughlin, 88 N.C. 255; Kerlee v. Corpening. 97 N.C. 334.