Opinion
June Term, 1859.
Heirs take by positive law where the ancestor dies intestate, and the course of descents cannot be altered by words excluding particular heirs, or by any agreement of parties.
PETITION for partition of land, descended to the petitioner and his sister, Harriet, the feme defendant, tried before SAUNDERS, J., at the last Superior Court of Chowan.
Winston, Jr., for the plaintiff.
Jordan and Wm. A. Moore, for the defendants.
By the petition, and a supplemental petition, and the answer and exhibits, the following case is made: In October, 1849, Joseph Cannon, the father of the plaintiff, conveyed to the plaintiff, in consideration of natural love, a tract of land, containing seventy-five acres, in fee simple. The deed contained the following clause: "Moreover, in consideration of this gift of land, the said Caltern C. Cannon is not to have, or be entitled to, any more of the land of his aforesaid father, unless the same should be given to him by deed, will, or other conveyance by his aforesaid father." In 1855, the father conveyed to his daughter, the defendant Harriet, another tract of land, containing seventy-five acres, in fee simple, in consideration of natural love; and in 1857, he made a conveyance for another piece of land of ten acres, in fee, in consideration of natural love. In June, 1858, the father died intestate seized of a tract of land, containing two hundred and four acres, and leaving a widow and the two children, who are the parties to this suit, and another son, Stephen G. Cannon; and the latter afterwards died intestate and without issue. The petitioner submits to bring into hotchpot, both of the tracts conveyed to the plaintiff at their value when conveyed, and insists that the defendants shall, in like manner, bring into hotchpot the land conveyed to the defendant, Harriet; and subject thereto, it prays for partition of the land descended, so as to assign to the plaintiff and the defendants one moiety thereof in point of value. The defendants, on the other hand, insist that the plaintiff is excluded from taking any part of the descended land, by force of the recited clause in the deed of 1849. In the Superior Court, the partition was decreed according to the prayer of the petition, and commissioners appointed to make it, with directions to value the lands conveyed to the respective parties by the father, as advancements as of the dates of the conveyances, and to charge the value thereof, to the respective donees, as parts of his or her equal moiety of the whole. From that decree, the defendants appealed.
The opinion of the Court coincides with that of his Honor. Heirs take by positive law when the ancestor dies intestate, and the course of descents cannot be altered by words excluding particular heirs, or by any agreement of parties. Suppose the father to have had no other child at his death but the plaintiff; being the sole heir, he must have taken the whole of the descended land ex necessitate. There must, therefore, be a disposition to another, so as to break the descent, otherwise the land descends, and, of course, it descends according to law; that is, in this case, to the heirs in general, subject to the provision for bringing advancements into hotchpot. That was decreed in this case, and the decree must be affirmed with costs in this Court.
This opinion will be certified to the Superior Court, to the end that further proceedings may be had there for executing the decree.
PER CURIAM, Judgment affirmed.