Keziah v. . Medlin , 173 N.C. 237 ( 1917 )

His Honor rendered judgment in favor of plaintiffs, and defendant appealed. The facts set out in the record are to the effect that plaintiffs contracted to sell defendant and defendant agreed to buy a fee-simple estate in the land devised to them by the will of their father. Defendant refused to comply with the contract, on the ground that feme plaintiffs did not have and could not convey a fee-simple interest in said shares of land. The only point involved is whether feme plaintiffs took a fee-simple estate under the will of their father.

In paragraph 1 of said will a tract of land is given for life to one of the sons. In paragraph 2 another tract is given for life to another son. In paragraph 3 the remainder of the realty is devised to the seven daughters, two of whom are the feme plaintiffs, for life. Paragraph 4 is as follows: "I will and devise that all land bequeathed in paragraphs one, two, and three (1, 2, and 3), of this my last will and testament for and during the natural lives of the parties named in said paragraphs 1, 2, and 3 shall at the deaths of the said parties named in said paragraphs go to the bodily heirs of the parties whose names are given in said paragraphs 1, 2 and 3 above."

His Honor correctly held that the feme plaintiffs took an estate in fee under the will. In paragraph 3 the testator devises his lands to his seven daughters for life. The feme plaintiffs are two of his seven daughters mentioned by name in said paragraph.

The next paragraph provided that at the death of the said daughters, who are named in paragraph 3, the lands go to their bodily heirs, thus creating an estate in fee tail, which by the statute is enlarged into a fee simple. Rev., 1578. Sessoms v. Sessoms, 144 N.C. 121; (238)Jones v. Ragsdale, 141 N.C. 200, and Maynard v. Sears,157 N.C. 1 are directly in point.

It is immaterial that the devise is to the seven daughters for life, as by section 4 of the will the limitation over is to their bodily heirs, thus creating a tenancy in common in fee in the seven daughters. Upon the death of any one of the daughters, her share, although the land be undivided, would descend to her heirs. The limitation in the fourth clause of the will "at the deaths" of the several daughters does not create a contingent remainder.

It is immaterial that the devise is to the seven daughters for life, as by section 4 of the will the limitation over is to their bodily heirs, thus creating a tenancy in common in fee in the seven daughters. Upon the death of any one of the daughters, her share, although the land be undivided, would descend to her heirs. The limitation in the fourth clause of the will "at the deaths" of the several daughters does not create a contingent remainder.

In Perry v. Hackney, 142 N.C. 369, the limitation was to the lawful heirs of her body (a granddaughter) after her death. It was held that the rule in Shelley's case applied and that the granddaughter took an estate in fee.

The case of Richardson v. Richardson, cited in brief of appellant, is not in point. There the devise was to S. for life, and at her death to J. for life, and at his death to his children if he should have any living, and, if he should leave no children, then to his brother; and it was held that the remainder devised to J. was a contingent remainder. This subject has been very recently considered in McSwain v. Washburn, 170 N.C. 363, and the rule adhered to that a limitation to M. for life and at her death to the heirs of her body vests in her a fee-simple estate under the rule inShelley's case.

Affirmed.

Cited: Harward v. Edwards, 185 N.C. 605; Elledge v. Parrish,224 N.C. 399.