Caswell County NcArchives Court.....William Oliver, Eli Murray V. 1848
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Source: Nc Reports
Written: 1848

Eli Murray & Al vs. William Oliver & Al, 1848

Adding a codicil to a will is a republication, and the codicil brings the will 
to it and makes it a will from the date of the codicil.

Cause removed from the Court of Equity of Caswell County, at Fall Term, 1848.

On the 30th of January 1827, Stephen Oliver made his will in which the 
residuary clause is as follows: "If there should be any remaining, after 
paying the moneys that I am security for him for, as for the balance of my 
estate, my desire is, that it shall be equally divided among the whole of my 
children during their natural lives. But my will is, that, if either of them 
die without a lawful heir, the whole of the property loaned them by me be 
returned for an equal division among the rest of my children." By a codicil 
written on the same sheet of paper, and dated May 28th 1828, he says: "My will 
is, that, when any of my children shall have children, that are lawfully 
begotten, then and in that case, the property I have loaned them, shall be 
theirs in fee simple to dispose of as they please."

The testator died, leaving eight sons, who were his only children, and leaving 
a considerable number of slaves, which formed a part of the residue of his 
estate, and were divided among the children.

In 1847, the testator's son Robert died without a child, leaving twelve 
slaves, devised under his father's will. He made a will, bequeathing the 
slaves to the defendants, who are two of his brothers.

The plaintiffs, who are the other children of Stephen Oliver, and the 
representatives of Reuben, a son, who died, leaving children, insist, that, by 
the will of their father, Robert took but a life estate and as he died without 
having a child, the slaves by the limitation over, are to be divided among the 
children.

The defendants insist, that Robert had an absolute estate, and claim the 
slaves under his will.

Norwood for the plaintiffs
J. H. Bryan and T. B. Venable for the defendants

[NC Supreme Court]
Pearson, J. Whatever might have been the construction of the residuary clause, 
had it stood upon the original publication in 1827, it is put beyond doubt, by 
the republication in May 1828, by the codicil of that date. For, by the 
republication, the will is made to speak and operate from that time. The act 
of 1827, ch. 7 had then gone into effect, and gave efficacy to the limitation 
over. Whatever doubt was once entertained, it is now unquestionably settled, 
that adding a codicil is a republication, and the codicil brings the will to 
it, and make it a will from the date of the codicil. Much more must it have 
that operation in putting a benignant sense on the words of the will, so as to 
make its provisions, in reference to personal property, take effect.

Therefore, it must be declared, that, upon the death of Robert Oliver, without 
having had a child, the slaves, allotted to him, and their increase, under the 
will of his father, belonged to his surviving brothers, and the present 
representatives of Reuben, who died leaving children. There must be a decree 
for a division accordingly, and for an account of the property, since the 
death of Robert.

Per Curiam
Decree accordingly

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