Pruden v. Paxton. any intent of the testator that the wife should have only a life estate in the Paxton farm; on the contrary, the intent would rather seem the other way, because in a former clause the testator had devised his dwelling-house and premises to his wife, and expressly limited the estate to her for life, manifestly in lieu and satisfaction of her right of dower, while in respect of the devise of the residue of his land, no such limitation is made; but on the contrary the wife is put upon the exact footing of the children. No contrary intent therefore plainly appearing, the rules of grammar must determine the construction, and applying these, the will first conveys the fee simple to all the devisees - wife and children and second, prescribes a division of the land and how it shall be made: Thus, 1st-"I give, devise and bequeath all my other property of every description to my beloved wife and dear children." This language unquestionably conveys the fee to all. Then the testator adds, 2nd-" to be divided among them according to law." This language is simply declaratory, not of the quantity of the estate conveyed, but of how the devisees shall hold it, to wit, in Severalty, by a division to be made in the mode prescribed by law. The clause in question first creates the estate and then directs a partition in severalty. This case is unlike that of Brown v. Brown, 2 Ired. Eq. 309, and Bost v. Bost, 3 Jones' Eq. 484. In the first case there was a residue of real and personal property as here, but the testator wills it "to be disposed of as the law directs." It was held that the personalty passed to the next of kin according to the statute of distributions, and the realty went to the heirs according to the law of descents, because in both cases they were the persons whom the law would direct to take if the testator had died intestate. Bost v. Bost was also a case of the construction of a residuary clause in the following words,-"I will that all the balance of my estate, real and personal, be disposed of as the law directs." It was held that the widow should have her dower assigned in the mode directed by law in cases of intestacy. The distinction between these two cases and the one at bar is manifest and illustrates the correctness of our construction. In the cases cited the law is invoked to designate who shall have the estate, while in our case the testator himself designates the objects of his bounty and devises the estate directly to them; the law 18 called upon only to divide the estate in severalty. The former are Pearsall v. Kenan. cases of intestacy quoad the residue, while the latter is a case of the devise of the residue,-where the testator did not, and did not intend, to die intestate as to any of his property. If the testator had devised the "Paxton farm" to A and her children to be divided among them according to law, there could have been not a doubt but that A would have taken the same estate as the children. It is not seen how the case is altered because A happened to be the wife of the testator, and the children, his children. We are therefore of opinion that by the devise the wife became a tenant in fee in common with the children, of an equal part of land with each of them, and that the plaintiff is entitled to recover accordingly. The court below having held otherwise, there is error. Judgment is reversed and venire de novo. Per CURIAM. Venire de novo. The legislature has the power to repeal or suspend the effect of a statute of limitation or presumption before it operates, and to give such repeal or suspension a retro-active effect. A CTION on a note of John J. Whitehead, principal, made on the 1st of January, 1858, for $1,000. The execution of the note was admitted, and the defense set up was the statute of limitations, the defendant's counsel insisting that he had a vested right to the period which elapsed between the making of the note and the 10th of February, 1863, Laws 1863, ch. 34, the date of the first act suspending the statute of presumptions of payment, which with the lapse of time from January 1st, 1870, and the commencement of the action, constituted a bar to the plaintiff's recovery, and that the legislature had no power to suspend the statute of limitations, retrospectively. Judgment for plaintiff, from which the defendant appealed. J. N. Stallings and Merrimon, Fuller & Ashe, for plaintiff. Pearsall v. Kenan. READE, J. After an action is barred or presumption of payment has arisen by lapse of time under statute, whether the legisla ture has the power to prevent a defendant from availing himself of the defense, seems not to be settled by the authorities.* In Cooley's Const. Lim. 365, 369, it is said that the legislature has not the power, and in a note there is a reference to quite a number of decided cases which I have not verified. In Johnson v. Winslow, 63 N. C. 552, what is said in Cooley is cited arguendo, but the point was not before the court, and no additional force is given to it. In Hinton v. Hinton, Phil. 410, without any reference to Cooley, it is intimated that the legislature has the power. But the point is not now before us, and therefore nothing that we could say upon it would have the force of a decision. We notice it only because it was in the argument before us. 66 The point in this case is not whether the legislature has the power to destroy the effect of a statute of limitation or presumption after it has operated by lapse of time, but whether it can repeal or suspend it before it operates. To repeal, is a universally recognized power; to suspend, is a kindred and lesser power and so far as we know has never been doubted. Cooley's Const. Lim. 391. And at page 365, note 1: The statute of limitations may be suspended for a period as to demands not already barred. Wardlaw v. Buzzard, 15 Rich. 158." And the statutes now under consideration have been held valid by this court in a number of cases too tedious to mention. Edwards v. Jarvis, 74 N. C. 315; Hawkins v. Savage, 75 id. 133; Neely v. Craige, Phil. 187; Morris v. Avery, id. 238; Benbow v. Robbins, 71 N. C. 338, and the case, before cited. It is insisted for the defendant that he had a vested right when the statute of 1863 was passed, and that the statute destroyed that Tight. What was his vested right? He owed the debt; it was due; if he had been sued on it, he had no defense. There was no statute of limitation or presumption that would have availed him. The most that he had was an expectancy that the plaintiff would forbear to sue him until the presumption would arise that he had paid it; and the legislature, because it had deprived the plaintiff of the right to sue, or had at least restricted the right for the ease of the defendant, deprived the defendant of the privilege of reaping any advantage * Girdner v. Stephens (1 Heisk. 280), 2 Am. Rep. 700; Fancy v. Yancy (5 Heisk. 353), 13 Am. Rep. 5; Rockport v. Walden (34 N. H. 167), 20 Am. Rep. 181: Thompson v. State, 54 Miss. 740, hold in the negative. Contra: Bradford v. Shine (18 Fla. 893), 7 Am. Rep. 289. VOL. XXVIII-43 Coble v. Coble. from the restrictions which had been put upon the plaintiff. That is all, and it is nothing of which the defendant had the right to complain. The three years statute does not avail the defendant, because the cause of action was prior to the Code, § 16. The clerk of this court will deduct the credits and calculate the interest, and report, and there will be judgment here accordingly; for which the clerk will be allowed $5. Per CURIAN. Judgment accordingly. COBLE V. COBLE (79 N. C. 589.) Privilege of counsel — address to jury — new trial for abuse of privilege. It is not within the privilege of counsel in argument to a jury to use language calculated to humiliate and degrade the opposite party in the eyes of the jury and by-standers, particularly when he has not been impeached; and where, on the trial, a witness for plaintiff had been impeached by the testimony of defendant, and plaintiff's counsel said in addressing the jury" that no man who lived in defendant's neighborhood could have any thing but a bad character; that defendant polluted every thing near him, or that he touched; that he was like the upas tree shedding pestilence and corruption all around him;" held, that the defendant was entitled to a new trial. HE facts appear in the opinion. There was judgment for the fiction in the court below and the defendant appealed. Thomas Ruffin, for plaintiff. Scott & Caldwell, for defendant. BYNUM, J. The argument and exhaustive brief of Mr. Ruffin have convinced us that the law and merits of the case are probably with the plaintiffs, and it is with reluctance that we are compelled to withhold an affirmation of the judgment rendered below, and to award a venire de novo. But in the conduct of the trial before the jury, there has been such a gross abuse of the privileges of an attorney to the manifest prejudice of the defendant, that we cannot Coble v. Coble. refuse him a new trial without a clear departure from a well-considered line of decisions of this court. We extract from the case so much of it as is necessary to present the question to be determined: "Plaintiffs' counsel in his concluding speech to the jury commented on the character of the defendant in language of denunciation; among other things, in speaking of the character of plaintiffs' witness, D. S. Coble, who had been impeached by the testimony of the defendant, he said, 'that no man who had lived in defendant's neighborhood could have any thing but a bad character; that defendant polluted every thing near him, or that he touched; that he was like the upas tree, shedding pestilence and corruption all around him.' The defendant's counsel objected during these utterances to these comments, upon the ground that the character of defendant had not been impeached, and that he had not been offered as a witness except by the plaintiffs," who had used his written testimony in their own behalf. Upon the argument here it was admitted that this was irregular, but it was insisted that it would not entitle the defendant to a new trial, unless it clearly appeared that his cause was thereby prejudiced, and that it was impossible such could have been the case because there was but a single issue that was left finally to the jury, to wit, whether the Shaw land was purchased with the plaintiffs' money, and as to that one the defendant was not examined, nor did his written evidence relate thereto, and could have had no weight one way or the other with the jury in determining the single issue submitted. This is the excuse. To us it seems an aggravation of the offense, for it admits that there was not and could not have been a single ground for the derogatory assault upon the defendant. It was therefore unprovoked and wanton, and could have been resorted to for the single purpose only of prejudicing his cause before the jury, the verdict must be carried by denouncing the man, and it was carried. Some allowance should be made for the zeal of counsel and the heat of debate, but here, the language and meaning of counsel were to humiliate and degrade the defendant in the eyes of the jury and by-standers, a defendant who had not been impeached by witness, by his answer to the complaint, or by his conduct of the defense, as it appears of record. Such an assault is no part of the privilege of counsel and was well calculated to influence the verdict of the jury. The defendant's counsel interposed |