Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-11-23
COURT DECISIONS.
Notes Of Cases Recently Decided,
Which are Of Interest. TO
Our People.
DlcEsTED BY W. B. MARTIN.
,E1eluslyely for vlrsinian-Pllot,
HINES v. MERCER.
Supreme Court OF North Carolina.
't October II. 1899.

0upreme Court OF North Carolina.
October IT. 1899.
WHERE TESTAToR DEVISED HIS
TRACT OF LAND NEAR "A GER
TAIN PLACE TO NJ. AND THE
RESIDUE OF HIS ESTATE TO
E OTHERS, AND AFTER THE MAX
ING OF THE WILL ACQUIRED
ANOTHER TRACT OF LAND
NEAR THE SAME PLACE, THIS
TRACT PASSED TO THE REsIDU-
AIRY DEVISEES AND NOT TO NJ.
This was an application to sell land
for partition, and the controversy in
volved the title of the land sought to
be sold. In 1855, the date of his will,
Jesse Mercer was SeiSed in fee of one
tract Of land, known as his 'home
tract; also, tract lat or near Tenn
perance Hail." in the same county. The
latter tract contained 20 acres. In 1891
he became seised of another tract, con.
tanning 81 acres, and died III 1892, leav-
ing u last will and testament dated De-
cember u, 1883. Item OF said will de-
vised to w. L. Mercer as follows: "All
Of my home tract of land, on which L
reside and including my tract of land
at Temperance Hall" In item 16 he
gives .'all the remainder of my estate.
and mixed. = unto John X.
Mercer Malvina Hines, and Elizabeth
Horn, to be divided between them, the
said three, equally" The 70-acre tract
and the 91-acre tract were 100 yards
apart, and each one about the same dis
lance from Temperance Hall Church.
The 01-acre tract was the land in dis
pute. w. Il. Mercer claims it under
Item l, and the others under item 16.
The court says:
In constituting wills, the intention is
the controlling fact, and the court will
look with anxiety TO ascertain the tcs-
tators Intention. The multitudinous
forms of expression, and the use of
words the legal meaning of which is
not understood by the testator, usually
raise grave questions for the court
Prior to the statute the title of no land
acquired after the date OF the will could
pass thereby, but since the statute all
lands owned by the testator at hie
death will pass, unless Il contrary in
tention shall appear by the will" This
statute making the will speak from the
death relates TO the subject-matter of
disposition only, and does not in any
manner interfere with the construction
In regard to the objects OF the gife.
Without wading through all the de-
clded cases, according to the best au-
thorities we have, this general rule
seems 10 De established: That where n
testator uses general terms, as "all OF
my estate" or "alI OF my lands or real
estate" then the devise will speak at
the date Of the death; but where he re-
ferS to n specific subject of gift, with
sufficient particularly in the descrip-
ton OF the specific subject of It., show
Ing that an object In existence at the
date of his will was intended, referring
TO the existing state Of things at the
date of the WILL and not at his death,
then the operation Of the general rule
is excluded. The death is a prospective
event, but the date of the will refers
to actual conditions. Applying these
rules to the case at bar, we do not find
any general terms to make the will
speak at the death as to the 9l-acre
tract, but the language, "all of nv
home tract, on which reside, and in
Guiding my tract of land at Temperance
Hall" refers to specific property, the
description being sufficient. and con-
yeys the idea that the testator had in
his mind the condition of things then
existing. 1t may be inferred without
violence to any part of the writing that
the testator intended, If 1t occurred to
him. that any future acquisitions should
pass under Item IL. tt hIS been surg
gcsted that charging the pecuniary
legacies on w. p. Mercer indicates an
intention to give him the whole estate
mt his death. If so, there was no need
of reSiduary clause. But we carMform
no opinion on that suggestion, as we
know nothing of the value of the sew
eral parcels of the property. Affirmed.
NELSON ". STEEN.