Buncombe County NcArchives Court.....Rebecca Posten, Den On Dem. Of William D. Jones Et Al V. 1840
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a December 28, 2011, 9:46 am

Source: N C Reports
Written: 1840

Den on Dem. of William D. Jones et al v. Rebecca Posten

When a testator, who had three tracts of land adjacent to each other, over 
parts of all which his plantation extended, and had three sons, R., J. and W., 
of whom R. and J. were married, and resided upon the testator's lands, devised 
to his wife "full possession of all the plantation and stock &c., during her 
natural life or widowhood, except the particulars that may hereafter be 
mentioned," and then devised to his son R. "all the 200 acre tract of land 
that he now lives on, and so much of the old tract as lies on the same side of 
Homony Creek," &c.; and in a subsequent part of his will, devised as 
follows: "I will and bequeath to my son J. all the remaining part of the old 
tract of land, exclusive of the part above mentioned, to my son R., and 
bequeath unto my son J. my still and all her furniture at the death or 
marriage of my wife. Also my wagon and hind gearing at her death." It was held 
that the testator's son J. took an immediate estate in fee in the lands 
devised to him, and not an estate in remainder after the death or marriage of 
the testator's widow.

This was an action of Ejectment, for a tract of land tried at Buncombe, on the 
last circuit, before his Honor Judge Hall; when the jury found the following 
special verdict:

"That the paper writing given in evidence, is the last will and testament of 
John Posten, deceased; that in the said will are contained, among others, the 
following clause: 'Item 2nd. I will and bequeath unto my dearly and well 
beloved wife Rebecca, full possession of all the plantation and stock, house 
and household furniture, during her natural life or widowhood, except the 
particulars that may hereafter be mentioned. Item 8th. I will and bequeath 
unto my son, Robert, all the two hundred acre tract of land that he now lives 
on, and so much of the old tract as lies on the same side of Homony Creek, 
above Joshua Jones, Junior's land, and all the land that is included in a 
bottom, known by the name of the Wagon Ford Bottom, on the north side of 
Homony Creek. Item 9th. I will and bequeath to my daughter, Mary, fifty 
dollars. Item 10th. I will and bequeath to my son, John A. B., all the 
remaining part of the old tract of land, exclusive of the part above mentioned 
to my son Robert; and bequeath unto my son John A. B. my still and all her 
furniture, at the death or marriage of my wife. Also, my wagon and hind 
gearing, at her death. Item 14th. I will and bequeath unto my son William, the 
three hundred acre tract of land that I now live on - the house and cupboard, 
at the death or marriage of my wife - and one horse and saddle, and mill and 
her furniture;' that the land therein devised to the testator's son, John A. 
B. Posten, is the land in controversy; that the lessors of the plaintiff claim 
title under the devise made to John A. B., and have his title thereto; that 
Rebecca Posten, the defendant, is the widow of the testator and devisee under 
said will, and that she has never since married, and is in possession of the 
land in controversy; that the lands devised in the said will, comprise the 
whole of the testator's real estate, and lie in three adjoining tracts, to 
wit, the three hundred acre tract on which the testator had his dwelling 
house, mills, &c. - the tract devised to his son Robert, and the lands devised 
in part to Robert, and the remaining part to John A. B., being that in 
dispute; that the testator's plantation embraced all the lands on all the 
tracts, two thirds of which were on the lands devised to John A. B., and the 
field thereon extended up to within two hundred yards of the mansion house; 
that the testator had no other sons except the three devisees; that Robert and 
John were married and living on the testator's lands, and John was not living 
on the lands devised to him; and that William was a boy under age, living with 
his father; that the testator died not long after the date of his will, which 
was on the 27th of January, 1819. If, in law, the devisee, John A. B., took a 
present interest under the will, they find the defendant guilty; but if he 
took only a remainder after the wife's death or marriage, they find her not 
guilty."

Upon these facts the court gave judgment for the plaintiff's lessors, and the 
defendant appealed.

No counsel appeared for either party in this Court.

NC Supreme Court Judge Gaston - As our opinion corresponds with that expressed 
by his Honor, in the Court below, the judgment must be affirmed. (see court 
case for judge's full findings)

Per Curiam
Judgment Affirmed

Additional Comments:
In the NC Supreme Court June Term 1840

File at: http://files.usgwarchives.net/nc/buncombe/court/rebeccap2182gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 5.2 Kb