Campbell v. . Crater

Ashe, J. (after stating the facts). The plaintiff's claim the land in controversy as devisees under the will of Percephal Campbell, who died in 1854. The defendants deny the title of the plaintiffs, and say they have had possession of the land with color of title for forty years. Both parties claim title derived from Percephal Campbell. The defendants by a deed from Williams R. Campbell in 1854, to Joseph James, and a deed from him to Jacob Crater, on the 22d day of September, 1866. The first question to be solved is: Did Williams R. Campbell take an estate in the land devised in “Item fourth ” of the will of Percephal Campbell, or did the estate pass by the devise to the heirs or children of said Williams R. Campbell, to his exclusion. We are of the opinion the land was devised directly and absolutely to the children, for here the word heirs evidently meant children of the said Williams R. Campbell — but that he derived no legal estate whatever in the land by the will of his father. The clause in the will bearing upon the point is, “ I likewise leave to my son Williams R. Campbell, five hundred and fifty acres of land on the waters of Rocky Creek, including the house that I now live in, and likewise four negroes, Bryant, Frank, Burton and Rachael, that to his heirs, but for him the said Williams R. Campbell to have jurisdiction over the said negroes or land.” In the construction of wills, the intention of the testator is the great object of inquiry; and to this object technical rules are, to a certain extent, made subservient. *161 The intention of the testator, to be collected from the whole, is to govern, provided it be not unlawful or inconsistent with the rules of law — 4 Kent, 634 — or as has been said, the intention is to be collected from the four corners of the will'. Looking at this will in all its parts and provisions, it must appear that the testator, for some reason, had no confidence in his sons generally, and therefore made the devises to their children. His son Percephal, in the same Item, is the only one of them to whom he devises land unequivocally. In the first Item, his bequest is to the heirs of his son William, naming his son and daughter as the objects of his bounty. In the third Item, he mentions his son Theophilus, and gives land and negroes to his heirs, but provides that Theophilus shall have no title nor claim to the said property. In the fourth Item, he leaves land and negroes to his son John, but adds, that is to heirs, and in the same clause, he leaves to his sou Williams, land and negroes, and after superadding the words, “ that to his heirs,” provides that Williams is to have jurisdiction over the land and negroes. We think the words “ that to his heirs,” evidently express the intention of making the grandchildren the objects of his bounty. And the reason why the names of the fathers are mentioned in each Item, was to designate the more readily the different classes of his grandchildren, among whom he was intending to distribute his property. If he had intended to give the property claimed and bequeathed in the fourth Item to Williams, why say after using the words, that to his heirs, “ but for him to have jurisdiction over the said negreos and land.” This provision is totally inconsistent with any intention of giving Williams any estate in the land. It gives Williams no use of the land nor enjoyment of the profits, butsimply jurisdiction, that is, the superintendence of the land and negroes, not for his benefit, but for that of his children, who were minors at the time of the testator’s death. If then, as we think, the devise in the fourth Item was to the children of Williams R. Campbell, the next question that arises *162 is, are the plaintiffs, as the devisees of Pereephal Campbell, or any of them, entitled to recover in this action. The defendant says they are not, because he has had more than seven years’ possession, with color of title. The statutory limitation in such a case is, that seven years’ actual adverse possession, with color of title, shall be a bar to all persons, except those who are laboring uuder any disability— such as infancy, and in that case, even after the expiration of the time of the limitation, they may bring their action within three years after full age, (The Code, §§141,148), but it is provided by §149, that when two or more disabilities shall co-exist, or when one disability shall supervene an existing one, the period prescribed, within which an action may be brought, shall not begin to run until the limitation of the latest disability. This last section can have no application, when there is a clear running of the statute for the seven years after the disability is removed, as when an infant attains his majority. In this case, all the sons of Williams R. Campbell had attained their majorities more than ten years before the commencement of this action, in October, 1885. Pereephal Campbell, the youngest of the sons, was 29 years old when his father Williams R. Campbell died, in July, 1883. He then must have been born in 1854, and arrived at 21 years of age in 1875. The statute then began to run against him, and he was barred before the action was commenced, and if he was barred, so likewise were his brothers, who were his seniors. It is true, the case states that James A. Campbell died, but without giving the date of his death, and we must assume that he died after his father, for it states that Williams R. Campbell died, leaving him and other children and grandchildren, but it can make no difference whether he was 49 years at his own death or that of his father, for he was old enough to be barred by the long adverse possession of the defendants, running from 1856, and if he was barred, of course the plaintiffs, who are his heirs-at-law, are likewise. *163 A. A. Campbell, another son, who died in 1872, at the age of 45 years, was barred, and also his heirs-at-law, who are plaintiffs, for the same reason. This disposes of all the plaintiffs except the two daughters, Mary E. Puckett and Alice C. Felts. Both of these females married under the age of twenty-one years, and are still under coverture. We are of the opinion they are not barred — for admitting the action is to recover their separate estate, and they may sue without joining their husbands with them in the action by virtue of §178 of The Code, -which declares, that “when the action concerns her separate property she may sue alone,” but this does not subject them to the operation of the statute of limitations, for in Lippard v. Troutman, 72 N. C., 551, it was held, that the provisions of The Code allowing a feme covert to sue or be sued concerning her separate property, does not remove the •disability of coverture, so as to allow the statute of limitations to bar a feme covert’s right of action. The right of suing alone is a privilege, which may be used for the advantage of a feme covert, but a failure to exercise this privilege cannot operate to her prejudice. We are of the opinion there was error, and the plaintiffs Mary E. Puckett and Alice C. Felts are entitled each to recover one undivided ninth part of the laud in controversy. This, therefore, must be certified to the Superior Court of Ire-dell county, that a venire de novo may be awarded. Error. Reversed.