Bertie County NcArchives Court.....Heckstall, V. Powell 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:13 pm

Source: Nc Court Reports, Vol 11, 1826
Written: 1825

December Term 1825

HECKSTALL AND WIFE v. POWELL. 

From Bertie.

The act giving power to Courts of Equity to order sales of real estate for the 
purpose of partition, directs the proceeds to which infants are entitled, to 
be secured to such infant or his real representatives. Hence such share of the 
process is to be considered as real estate, and (if the infant die before 
arriving at age) the heir at law will succeed to it, and not the personal 
representative. But if the infant arrive at full age and then die, whether the 
heir at law will be entitled, quere?

The bill set forth, that the mother of Mrs. Heckstall had died intestate 
(leaving surviving her her second husband, Samuel Powell) seised and possessed 
of certain land in Bertie county; that her heirs at law were Mrs. Heckstall, 
the child of her first marriage, and John Powell and Miles Powell, children of 
her second marriage; that afterwards Samuel Powell died; when a bill was filed 
in equity by Mrs. Heckstall and John and Miles Powell, to sell the land of 
their mother for the purpose of division; that a sale was decreed, which took 
place, and was afterwards confirmed by the Court; that at the time of the sale 
and final decree, John and Miles Powell were infants, and the defendant was 
appointed their guardian, and as such received two thirds of the purchase 
money of the land aforesaid; that John and Miles were (217) since both dead, 
without issue, leaving Mrs. Heckstall, their heir at law, who claimed by the 
bill the two-thirds of the money arising from the sale of the land.

The bill farther charged, that John and Miles left a large personal estate, 
and the complainant, William Heckstall, as their administrator, claimed the 
same.

The answer of Powell admitted, that as guardian he had received two-thirds of 
the price of the land; and as to the other property which it was alleged had 
belonged to his wards, he referred to his accounts as guardian, mailing them 
part of his answer, whereby it appeared that the estates of John and Miles 
were indebted to him.

The answer also stated, that John died first, and then Miles, after the 
defendant had received the purchase money of the land, and that Miles left, at 
his death, besides Mrs. Heckstall, two other sisters, Nancy and Patsy, on the 
father's side, who are equally entitled with Mrs. Heckstall, and are not 
parties to the bill.

The matters of account were referred, in the Court below, to the master, and 
on his report, Daniel, Judge, below, decreed, that the complainants should 
receive of defendant two-thirds of the amount for which the land sold, it 
being considered by the Court as land; and that the defendant should retain 
the interest made on the money, as profits of the land, in part payment of his 
claim for advancements made to John and Miles as their guardian, and that each 
party pay his own costs.

From this decree defendant appealed.

L. Martin, for complainants.—By the act of 1812, ch. 847, which authorizes 
Courts of Equity to sell real estate to make partition, it is required in all 
cases, that when any of the parties be an infant, feme covert, or non compos 
mentis, imprisoned, or beyond the limits of this state, that "it shall be the 
duty of the Court to direct the part of the proceeds of the sale to which such 
person is entitled, to be so invested or settled, that the same shall be 
effectu-(218)ally secured unto the person so entitled, or his or her real 
representatives. 

The act of 1818, ch. 982, sec. 1, directs the appropriation of the money to be 
made in the same manner, as far as respects this case, when the land is sold 
for public purposes.

Although the defendant sets up an account in this case against his wards, it 
makes no difference; because the fund being real estate, he cannot hold it, 
from the heirs; and because Heckstall, the complainant, is the administrator 
of both the wards, and avers that he has assets to more than the amount due 
the defendant, which is not denied.

Taylor, Chief Justice, delivered the opinion of the Court.

According to the directions of the act relative to the sale of lands for the 
sake of partition, the proceeds of an infant's share shall be so invested, or 
settled, that the same shall be effectually secured unto the person so 
entitled, or his or her real representative. (1812, ch. 847.)

If John and Miles Powell had died intestate before the sale, Elizabeth, the 
plaintiff's wife, would have been their heir at law, in exclusion of their 
paternal half sisters, conformably to the fourth rule of descent established 
by the act, of 1808. It is equally clear, that if either had died under age, 
after the sale, the money produced by the sale must have been considered as 
land, and therefore the heir at law would have succeeded to it. But it is not 
so certain, that if one or both had arrived at full age, and then died, that 
his or their share of the money would then have been considered as land, and 
be descendible accordingly. It is stated in the case, that one died after he 
came of age, but it is stated incidentally in the defendant's answer, and for 
a purpose altogether unconnected with the principal question.

Now the decree considers the whole sum as real (219) estate, in which it is 
erroneous, and must be reversed.

The cause must be remanded for farther proceedings, and especially for the 
purpose of ascertaining the ages of John and Miles Powell at the time of their 
respective deaths.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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