Rutherford County NcArchives Court.....Annie Neal Et Al, R. L. Smith & W. M. Smith V. 1875
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Connie Ardrey n/a October 29, 2011, 5:01 pm

Source: Nc Reports
Written: 1875

R. L. Smith & W. M. Smith v. Annie Neal and others

A devised as follows: "I give to my two grandsons, M and R, one hundred acres 
of land, including where I now live," &c., and that my daughter P live where I 
now live for the space of ten years; and at the end of that time, the land and 
premises to belong to my two grandsons, or the heirs of I:" Held, that after 
the expiration of ten years from the death of the testator, M and R, the 
children of I, who was dead, were entitled to the land.

This was a Civil Action in the nature of Ejectment, tried before Schenck, J. 
at Spring Term, 1875, of Rutherford Superior Court.

The plaintiffs claimed the land in controversy as devisees under the will of 
William Smith. It was agreed that the right of the plaintiffs to recover 
depended upon the construction of the will, and that the Court should decide 
as to the construction.

It was in evidence that William Smith's real estate consisted of the tract of 
land on which he lived, containing about three hundred and fifty-three acres. 
The testator lived near the center of the tract. James T. Smith lived in the 
northern part of the tract and that Jeremiah W. Smith, the father of the 
plaintiffs lived in an unenclosed field, in the Southeast corner of the tract. 
Jeremiah Smith "was leader of the crop" in the lifetime of the testator, but 
the land was worked by all the family together. Polly Smith took possession of 
the house in which Jeremiah W. Smith lived, and remained in possession ten 
years, after which this action was brought.

The clause of the will, under which the plaintiffs claim reads as follows:

"I give to my two grand-sons, Matthew and Richard Smith one hundred acres of 
land including where I now live, joining the land I have given to my son J. S. 
Smith; and that my daughter Polly Smith live where Jeremiah W. Smith now lives 
for the space of ten years, and at the end of that time the land and premises 
to belong to my two grand-sons or the heirs of J. W. Smith."

The Court being of the opinion that the plaintiffs were entitled to recover, 
an issue as to damages was submitted to a jury and a verdict rendered, 
assessing the damages at three hundred dollars. And the Court thereupon gave 
judgment for the plaintiffs, from which judgment the defendants appealed.

Shipp & Bailey, for the appellants
J. F. Hike and Battle & Son, contra

NC Supreme Court Justice Settle, J. - William Smith intended to dispose of his 
whole estate by will. There is nothing in the will or in the circumstances of 
the estate to induce us to change the general rule.

The judgment of the Superior Court is affirmed.

Per Curiam
Judgment affirmed

Additional Comments:
In the NC Supreme Court June Term 1875

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