Mabry v. . Stafford
Supreme Court of North Carolina
Civijl, ActioN tried at Spring Term, 1883, of Alamance Superior Court, before Gilmer, J. John Crawford died, leaving a will which bears date October 19th, 1874, and has since been admitted to probate, containing the following clauses: “Item 5. I give and bequeath to my three nephews, John, Willis and Randall Mabry, four hundred dollars each, to them and their heirs forever.”
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Civijl, ActioN tried at Spring Term, 1883, of Alamance Superior Court, before Gilmer, J. John Crawford died, leaving a will which bears date October 19th, 1874, and has since been admitted to probate, containing the following clauses: “Item 5. I give and bequeath to my three nephews, John, Willis and Randall Mabry, four hundred dollars each, to them and their heirs forever.” “Item 8. I give and bequeath the balance of my estate, if there should be any surplus after my executor pays all the legacies heretofore willed, and all my just debts, my' burial and funeral expenses, &e., the balance I…
1Opinion of the Court
Smith, C. J.,
after stating the facts. Without adverting to the irregularity of making such a motion in the absence of any evidence of the fact on which it is predicated, except in the unverified allegation contained in the defendant’s answer, and accepting the statement as true that the entire fund has been accounted for and paid over to the residuary legatee, we approve of the ruling of His Honor in refusing the motion.
The residuary legatee having received the money bequeathed, and the executor having voluntarily paid over the same in recognition of his legal right thereto, the trustee has…
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