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Branch v. Hunter.
the Enfield tract of land to his daughter, Mrs. Bradford, by these words: "also my plantation between Burnt coat and Beaverdam swamp." He then devises to his daughter, Mrs. Hunter, "all that portion of my Enfield tract of land lying north of the old road from Old Enfield to Halifax town." (We must bear in mind, that the land devised to Mrs. Bradford also lies north of this old road, and in the view which we are now taking, is embraced by this general description.) The testator then gives "all the balance of my property, after paying debts," to the lessors of the plaintiff. Finally, he cancels the devise to Mrs. Bradford.
The question is: Does this act of cancellation have the effect of throwing the plantation which had been devised to Mrs. Bradford into the devise to Mrs. Hunter, or of letting it fall into the residuary clause?
We are of the opinion that it falls into the residue. The devise to Mrs. Bradford shows that, by the devise to Mrs. Hunter, under the general description "all that portion of my Enfield tract of land lying north of the old road," he did not include the part lying north of the Burnt coat swamp. The act of cancelling the devise to Mrs. Bradford is satisfied, by giving to it the effect of defeating the devise in respect to her; and we can see no good ground for giving to it the additional effect of enlarging the sense of the words of general description, used in the devise to Mrs. Hunter. If this be so, it follows that the land which he intended at first to give Mrs. Bradford, and which is excepted out of the devise to Mrs. Hunter, is, by the cancellation of the devise to the former, left undisposed of, except by the residuary clause. The question may be stated thus: The testator gave to Mrs. Hunter his Enfield tract of land, except the part lying north of the Burnt coat swamp. That part he afterwards gave to Mrs. Bradford. He then cancelled the devise to Mrs. Bradford, but did not cancel the exception in the devise to Mrs. Hunter. There being nothing then to
Hughes v. Pipkin.
show an intention to alter the latter, the words must retain the sense in which he used them at first, unless we give to the act of cancellation the effect of not only defeating the devise to Mrs. Bradford, but also of adding to the devise to Mrs. Hunter, in the absence of anything to show this second or superadded intention.
If he had intended to enlarge the devise to Mrs. Hunter, by adding to it a plantation of 500 acres of land, he would have taken the trouble to alter his will by saying so, and his being content with the simple act of cancellation shows that his purpose was merely to revoke the devise to Mrs. Bradford-and the legal effect of his doing so is to throw the land into the residue.
There is no error.
JOHN HUGHES v. PHILIP PIPKIN.
One who has precedence in a claim for letters of administration loses such right, not by delay merely, but by unreasonable delay, which is a matter of law. Letters of administration having at the first term of the court been granted to one not primarily entitled, upon application at the next term by the person primarily entitled, and upon his showing cause for not having applied before, held that it was the duty of the court to set aside the former letters, and to issue letters to the second applicant.
(The cases Stoker v. Kendall, Bus. 242, and Wallis v. Wallis, Win, 78, cited and approved.)
THIS was an appeal from an order by Warren, J., at Spring Term, 1866, of the Superior Court for Craven county, made in a contest for administration upon the estate of one Raymond Castrix, deceased.
Hughes v. Pipkin.
The facts were, that at December Term, 1865, of Craven County Court, letters of administration upon that estate were granted to the defendant, and he was duly qualified. At March Term, 1866, in pursuance of a notice thereof, theretofore served upon the defendant, an application was made to set aside the former appointment, and to issue letters to the plaintiff, the appointee of the next of kin, who resided at Goldsboro'. In support of that application, it was shown that the next of kin had addressed a note to the plaintiff, during the week of December Term, 1865, requesting him to take out letters; and had delivered the same to a gentleman of Newbern, going home, with a request that he would transmit the same promptly, as it contained matter of importance; and that such note was not delivered until the close of the term, owing to the illness of the carrier. Thereupon the previous order was set aside, and the plaintiff appointed administrator.
Upon an appeal by the defendant to the Superior Court, additional reasons were shown for his appointment, arising from his pecuniary liabilities for the deceased, &c., and it was also insisted by the defendant, that the court had no power to reverse the former appointment in the County Court. His Honor having given judgment for the defendant, the plaintiff appealed.
Haywood, for the plaintiff.
Manly and Haughton, for the defendant.
READE, J. The statute (Rev. Code, ch. 46, ss. 2, 3,) prescribes who are entitled to letters of administration; and these, in the order mentioned, have a right to administer. So that, if the persons named apply for letters at the proper time, they are entitled as a matter of right, unless they are "incompetent." The court has no discretion, except what is given in the statute. An appeal in these matters lies
Hughes v. Pipkin.
from the County to the Superior Court, and thence to the Supreme Court. But the appellate Court has no more discretion than the County Court, and can determine only the rights of the parties, and issue a procedendo to the County Court.
If the person having precedence under the statute does not apply, then the next in order has the right to obtain letters. But, suppose that the person having precedence under the statute delays to apply, and that the next in order applies for and obtains them, and then that, at a subsequent term of the court, the person who originally had precedence applies to have such letters revoked, and others granted to him, what must the court do?
It is settled in the cases of Stoker v. Kendall, Bus. 242, and Wallis v. Wallis, Win. 78, that the person having precedence loses his right, not by delay, but by unreasonable delay. What delay will amount to this, is a question for the court.
Let us apply the foregoing principles to the case before us: The plaintiff, as appointee of the next of kin, had precedence; but, because of the miscarriage of a letter, did not make application at December Term, 1865, the first term at which it was proper to apply. The defendant, who was next in order, did, without notice to the plaintiff, apply at that term, and obtained letters of administration. Afterwards, the plaintiff gave the defendant notice that he would apply, at the next term, to have these letters revoked. At such term they were revoked, and letters were thereupon. granted to the plaintiff. The defendant appealed from this order to the Superior Court, and his Honor "reversed the decision of the County Court, rendered at March Term, 1866, and affirmed the previous appointment of the defendant, at December Term, 1865."
In this we think that there was error. We are of opinion, that the delay to apply at December Term was not,
Barry v. Sinclair.
under all the circumstances, unreasonable; and therefore, that the plaintiff had not forfeited the right which he originally had. If the defendant had given notice to the plaintiff, of his purpose to apply at December Term, and thereupon the plaintiff had failed to apply, he would have lost his right, and the defendant would have been entitled to letters, and the court consequently would have had no power thereafter to revoke them.
This opinion must be certified to the Superior Court, with instructions to issue a procedendo to the County Court to appoint the plaintiff.
HORACE M. BARRY v. JAMES SINCLAIR.
A bond payable to the plaintiff in an attachment, and conditioned for the appearance of the defendant, &c., is not a "bail bond," within the meaning of the Rev. Code, c. 7, s. 5, and, therefore, by executing such a bond, the defendant does not obtain a right to replevy and plead.
ORIGINAL ATTACHMENT: from an order in which, by Buxton, J., at Spring Term, 1866, of New Hanover Superior Court, (the return term,) the defendant appealed.
The facts appear sufficiently in the opinion of the court.
No counsel in this court, for the plaintiff.
READE, J. The plaintiff sued out an original attachment, and it was levied by the sheriff on the property of the defendant. The defendant replevied the property by giving to the sheriff a bond payable to the plaintiff, conditioned for the appearance of the defendant at the next court, to answer the plaintiff's action. At the return term the de