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23 N.C. 257

Mitchell v. Mitchell

Supreme Court of North Carolina

Decided December 15, 1840

Supreme Court of North Carolina · decided 1840-12-15

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 Pbarson. 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.

Decided 1840-12-15

Daniel, Judge,

¶1after 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' shew,” 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. The judgment must be reversed, and, upon the case agreed, judgment given for the defendant.

¶2Pee Cueiam. Judgment for the defendant.

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