Pasquotank County NcArchives Court.....Ferebee Gregory, John & Nancy Gregory V. 1873 ************************************************ 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 14, 2009, 4:19 pm Source: North Carolina Report June Term Written: 1873 John & Nancy Gregory v. Ferebee Gregory A, B and C are tenants in common of a tract of land; C dies in debt, and his widow becomes his administratrix. A and B filed their petition for a partition of the land into three parts: Held, that the widow of C, being entitled to dower, and also as representing the creditors of C, was a necessary party to such petition, both as widow and as administratrix. The widow, but being the representative of her husband, who has no exclusive or superior right to any particular portion of the land to be divided, has no right to have any particular part of such land assigned to her as dower. In a petition for partition of a tract of land consisting of twelve and three- fourths acres, worth $199.40; the commissioners appointed for the purpose, having divided the tract into three parts, worth respectively, the dwelling house share, $144.15, and the two others, $34 and $21.25; Held, in such case an actual partition with a reasonable equality of values could not be made without impairing the value of some of the shares, and that the Court ought to have ordered the land to be sold for an equal division. Civil Action, petition for partition, to the Probate Court of Pasquotank County, submitted to Alberson, J., and by him determined, 14th day of January, 1873, upon the following facts agreed: Ferebee Gregory died intestate, leaving three children, to wit: Hosea Gregory, and the petitioners, John and Nancy. She left no estate except twelve and three-fourths acres of land upon which she resided, which land descended to her children. Sometime after the death of his mother, Hosea died intestate, leaving a widow, but no children. At the time of death he was greatly in debt; he left no estate except his interest in the lot above mentioned. John and Nancy filed a petition for partition, and commissioners were appointed by the Court, who went upon the land and divided it into three parts of four and one-fourth acres each; upon one of the lots were all the buildings, and this was valued at $144.15, another lot was valued at $34, and the third lot as $21.25. The commissioners then caused the lots to be drawn for, when the $34 share was drawn for Hosea; the $21.25 share for John, and the share with the dwelling and out-houses, valued at $144.75 was drawn for Nancy, the more valuable dividend being charged with amounts to be paid to the shares of less value, to make equality of partition. The commissioners so reported, and the attorney for the petitioner moved for a confirmation of the report; upon which exceptions were taken by the widow of Hosea Gregory, through her counsel, assigning for cause: 1. That actual partition of said estate could not be made equitably. 2. That the children by a former marriage, who were minors without guardian, were creditors of the said Hosea, and that as such, they ought to be represented in this proceeding. 3. That if partition could be made by this manner of proceeding, the shares ought to have been allowed by the commissioners, and that share with the dwelling and out buildings upon it ought to have been set apart to her, as the widow of Hosea; and that having such an interest she ought to have been a party in the proceeding. The clerk refused to confirm the report, and the petitioners appealed. Afterwards, the widow applied for and obtained letters of administration upon the estate of her husband, the said Hosea, when she made further exceptions to the confirmation of the said report, for the cause that the creditors generally of the said Hosea should be represented in a proceeding for partition of lands in which said Hosea had an interest in common with others. His Honor being of opinion with the petitioners, reversed the judgment of the clerk, and confirmed the report of the commissioners. From this judgment, Ferebee Gregory, the widow and administratrix of Hosea Gregory appealed. No counsel in this Court for appellant Smith & Strong, for petitioner, submitted the following brief: 1. The whole legal title in the tract is in the petitioners alone, and in a proceeding for partition between them, no one can become a party thereto. 2. As this proceeding is only at the instance of the two tenants in common, the partition is only affectual as between them, and does not affect other interests in the subject matter. 3. The widow is not entitled to dower in that part of the tract containing the buildings. She is entitled to the dwelling only in a proceeding between herself and her husband's heirs or devisees, where the land on which they stand belonged to her husband. She is only entitled to one-third for life of the unascertained share of her husband. And if she may, in asserting this claim, treat the land as held in common, notwithstanding the partition, as to her right of dower, she cannot interfere in a proceeding which is solely for a division among them in whom the legal title rests. 4. The administrator has not, nor have creditors any interests in the real estate such as to prevent the heirs from making a division between them, and this they may do by executing deeds between them, or by partition. 5. The administrator may procure license to sell to pay his intestate's debts, and though a partition meanwhile may be made by tenants, the administrator has no such right, before applying for such license, to interfere with the proceeding. 6. It may be that neither the widow, in respect to her claim for dower, or homestead, nor the administrator, in respect to obtaining license, are affected by the result of the proceeding for partition, and may treat the entire land as still in common, in getting the share and value of the intestate's part, still it is plain they have no legal ground on which to interfere in the proceeding. [NC Supreme Court] Rodman, J. Judgment reversed. [See court case for Judge Rodman's complete findings] File at: http://files.usgwarchives.net/nc/pasquotank/court/ferebeeg1260wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 6.5 Kb