Hammer v. Brantley , 244 N.C. 71 ( 1956 )

92 S.E.2d 424 (1956) 244 N.C. 71

Leo M. HAMMER and wife, Inez M. Hammer, and Gennie Bunting a widow,
v.
Fred T. BRANTLEY and Joe M. Brantley.

No. 528.

Supreme Court of North Carolina.

May 2, 1956.

Coltrane & Gavin, Asheboro, for defendant appellants.

Hammond and Walker and J. Harvey Luck, Asheboro, for plaintiff appellees.

BARNHILL, Chief Justice.

This appeal is not complicated by the indefiniteness of the devise to Gennie Bunting. The bounds of her devise have been settled by the parties by an agreement of partition in which the 100 acres have been set apart to her by metes and bounds.

"It is established by repeated decisions of this court that the rule in Shelley's Case is still recognized in this jurisdiction, and where the same obtains it does so as a rule of property without regard to the intent of the grantor or devisor. Jones v. Whichard, 163 N.C. 241, 79 S.E. 503; Price v. Griffin, 150 N.C. 523, 64 S.E. 372, 29 L.R.A.,N.S., 935; Edgerton v. Aycock, 123 N.C. 134, 31 S.E. 382; Chamblee v. Broughton, 120 N.C. 170, 27 S.E. 111; Starnes v. Hill, 112 N.C. 1, 16 S.E. 1011, 22 L.R.A. 598; Merchants Nat. Bank v. Dortch [& Hines], 186 N.C. 510, 120 S.E. 60; Wallace v. Wallace, 181 N.C. 158, 106 S.E. 501; Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 502, 34 A.L.R. 952." Allen v. Hewitt, 212 N.C. 367, 193 S.E. 275, 276.

When a devise is to a named person for life with remainder after his death to "his heirs" or "his bodily heirs" or the "heirs of his body," nothing else appearing, the devisee becomes seized of a fee simple estate upon the death of the testator subject to any prior life estate created by the will. It is so provided by statute, G.S. §§ 31-38 and 41-1, and has been so held by numerous opinions of this Court. The line of cases so holding is represented by Chamblee v. Broughton, 120 N.C. 170, 27 S.E. 111; Merchants Nat. Bank v. Dortch & Hines, 186 N.C. 510, 120 S.E. 60; Jackson v. Powell, 225 N.C. 599, 35 S.E.2d 892; and Whitson v. Barnett, 237 N.C. 483, 75 S.E.2d 391. See also Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341. We could say nothing on this subject which has not already been said which would be helpful to Bench or Bar. Hence an extended discussion of the subject is wholly unnecessary.

Daniel v. Bass, 193 N.C. 294, 136 S.E. 733, relied on by defendants, is distinguishable. Furthermore, it does not sustain the position of the defendants.

The judgment entered by the court below is

Affirmed.

JOHNSON, J., not sitting.