Currituck County NcArchives Court.....Willoughby McBride, Thomas Sears V. 1874
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 29, 2009, 7:35 pm

Source: Nc Reports
Written: 1874

Thomas D. Sears v. Willoughby McBride

Currituck County

January Term 1874

To entitle husband to an estate as tenant by the curtesy, before the adoption 
of the Rev. Code (lst January, 1856,) a seizen in deed was necessary; and 
under the rules prescribed in chap. 38 of the Rev. Stat., 1st January, 1838, a 
seizen in deed was also necessary, in case of the parent's claming a life 
estate upon the death of his child. Now under the provisions of the Rev. Code, 
chap. 88, rules 1 and 18, neither actual nor legal seizen is necessary to make 
the stock in the devolution of estates. 

Civil action, (for the recovery of a certain tract of land,) submitted to, and 
determined by Albertson, J., at the Fall Term, 1873, of Currituck Superior 
Court. 

His Honor, upon the facts submitted, being of opinion with the defendant, the 
plaintiff appealed. 

The facts, are fully set out in the opinion of the Court. 

No counsel in this Court for the appellant. 
Smith & Strong, for the defendant, submitted: 

Daniel Lee, by his will, made November 22, 1822, devised the land to his grand-
daunghter, Eliza McPherson, "until she arrives to the age of eighteen, then 
the same to return my" (the testator's) "heirs." He further provides, in a 
subsequent clause, "In case she should marry under the age of eighteen, or 
after, I give it to her and her heirs forever." The testator died in 1823. 

Eliza thereafter married Israel Fanshaw and died, leaving issue a daughter 
Eliza, who intermarried with the plaintiff in 1850, and died November 27, 
1852, leaving an only child William, who died December 7th, 1852. William left 
no brother nor sister nor the issue of such. Israel Fanshaw died in the Fall 
of 1871. 

The fee vested in the devisee Eliza, on her marriage with Fanshaw, and after 
her death, he became tenant by the curtesy, and entitled to a life estate in 
the land, which terminated in 1871 at his death. 

The remainder in fee, at the death of the devisee, descended to his daughter 
Eliza, to which her husband, the plaintiff, was not entitled to an estate for 
his life. 

At the death of Eliza, the plaintiff's wife, the land subject to the life 
estate of Fanshaw, descended to her son William Sears. 

At the death of William, no estate vested in his father, but it descended to 
his nearest relations of the blood of the ancestor from whom the estate 
descended, because there was no seizen in William. Rev. Stat., chap. 88, rule 
6. 

The Revised Code does not apply, having gone into operation subsequent to 
these descents. Lawrence v. Pitt, 1 Jones, 344. 

Settle, J. [see original case for judge's notes]

Per Curiam.  Judgment affirmed.

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