Vance County NcArchives Court.....W. T. Knight Et Al, W. H. Johnston, Executor V. 1895
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Connie Ardrey n/a January 7, 2010, 8:56 pm

Source: Nc Reports
Written: 1895

W. H. Johnston, Executor v. W. T. Knight et al
September Term, 1895

Will, Construction of - Power of Disposal by Will, Exercise of - Per Capita 
Distribution of Property

1. Whereas the execution by will of a power is not exercised in express terms, 
by reference to the power or the subject, a construction must be given by 
looking to the whole instrument and giving effect to the intent therein 
manifested.

2. Unless there is something to show a contrary intention on the part of a 
testator a general residuary devise will operate as an execution of a power to 
dispose of property by will.

3. Where the donee of a power to dispose of property by will to certain 
persons, devises the property to such persons by a residuary clause without 
referring to the power, the devise will be considered an intentional and not 
an accidental exercise of power.

4. The words "to be equally divided" used in a will, require a distribution of 
the property per capita among the persons named, except when other language of 
the will or the manifest intent requires otherwise.

Civil Action for the construction of a will, heard before Coble, J., at May 
Term, 1895, Vance Superior Court.

Penniah McDowell left a will, in which was the following clause: "That, as my 
estate is given and devised to my beloved sister Mary L. Howell only during 
her natural life, I give and devise it at her death as follows; that is to 
say: To the heirs of my sister Elizabeth O. Knight, to the heirs of my sister 
Margaret L. Long, to the heirs of my brother Elisha C. McDowell, and to my 
beloved sister Pattie A. McDowell. The division of my estate after the death 
of my beloved sister Mary L. Howell shall be in accordance with her will to 
the said parties or their heirs, I leaving the amount to be determined for 
each individual by her, my sister Mary L. Howell."

Mary L. Howell left a will, shown in the complaint, in which the following 
clause, after making several specific legacies: "And the balance of my estate, 
both real and personal, be equally divided between Wm. T. Knight, Pattie 
McDowell and the children of J. P. and Margaret L. Sugg, and the children of 
Elisha McDowell."

The parties named in the residuary clause of M. L. Howell's will are the same 
as mentioned in the will of Penninah McDowell.

His Honor held that Mary L. Howell executed the power entrusted to and reposed 
in her by Penninah McDowell, and that the distribution of the residuary estate 
under her will should be per capita among W. T. Knight, Pattie McDowell and 
the children of J. P. and Margaret Sugg, and Elisha C. McDowell.

From the decree the plaintiff, executor, and the defendants W. T. Knight and 
Pattie McDowell, appealed.

Messr. John L. Bridgers and W. O. Howard, for defendants.
No counsel, contra.

[NC Supreme Court]
Faircloth, C. J.: 
Judgment affirmed.

[See original court case for Judge Faircloth's complete findings]

File at: http://files.usgwarchives.net/nc/vance/court/wtknight1275wl.txt

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