Gates County NcArchives Court.....Esther Mitchell Et Al, Mary Mitchell V. 1840
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Connie Ardrey n/a December 29, 2011, 6:38 pm

Source: N C Reports
Written: 1840

Mary Mitchell v. Esther Mitchell et al

A devise of "all my property of any nature or kind whatsoever, which deeds, 
papers and moveables will show," can, by no intendment nor construction, be 
taken to indicate an intention in the testator to devise the land, which 
belonged to his wife.

This was a petition for dower, originally filed in the Court of Pleas and 
Quarter Sessions of Gates County, and taken thence by appeal to the Superior 
Court of Gates, where it was heard at Spring Term, 1840, before his honor 
Judge Pearson. The petitioner claimed to be endowed of a tract of land, of 
which she alleged her late husband John died seized and possessed, and which 
he had held as a tenant in common with the defendant, Esther Mitchell. Esther 
Mitchell in her answer denied that John Mitchell ever was seized of the said 
land. It appeared, on the hearing, that the land in question belonged to the 
defendant, Esther Mitchell, previous to her intermarriage with her late 
husband, Richard Mitchell, and that she had not made any conveyance by which 
she had parted with her title; that the said Richard Mitchell died some years 
before his son John, and that he had made a last will and testament, executed 
in due form of law to pass real estate, and which had been admitted to probate 
in the proper court. In and by the said will, among other things, he devised 
and bequeathed as follows: "After paying my just debts, legacies and expenses, 
I leave all the balance of my property of any nature or kind whatsoever, which 
deeds, papers and moveables will show, to my wife, Esther Mitchell, and her 
heir, John Mitchell." The personal property bequeath by this clause was 
equally divided between the said Esther and John, and they both continued to 
reside upon the land in question, from the time of the death of Richard 
Mitchell until the death of John Mitchell.

The judge below being of opinion, that by taking the personal property 
bequeathed to her in the will, the said Esther had elected that her land 
should pass by the devise in the will, that thereby John Mitchell acquired an 
equitable interest therein, of which by our act of Assembly of 1828, (1 Rev. 
St. c. 121, s. 6) his widow might be endowed, gave judgment for the petitioner 
and directed a writ of dower to issue. From this judgment the defendant, 
Esther Mitchell, appealed to the Supreme Court.

Kinney for the plaintiff
A. Moore for the defendant

NC Supreme Court Judge Daniel - after stating the case, proceeded: We are of 
opinion that the Judge put a wrong construction on this clause in Richard 
Mitchell's will. The words "my property of any nature or kind whatsoever, 
which deeds, papers and moveables will show," by no intendment nor 
construction can be taken to indicate an intention in the testator to devise 
the land which belonged to his wife. This being our opinion, it becomes 
unnecessary to decide the other question raised in the cause, whether dower 
under the statute in trust or equitable estates could be recovered in any 
other way than by bill in equity. Te judgment must be reversed, and, upon the 
case agreed, judgment given for the defendant.

Per Curiam
Judgment for the defendant

Additional Comments:
In the NC Supreme Court December Term 1840

File at: http://files.usgwarchives.net/nc/gates/court/esthermi2184gwl.txt

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