Robeson v. . Moore , 168 N.C. 388 ( 1915 )

Controversy submitted without action.

On the hearing it appeared that plaintiffs, having contracted to sell and convey to defendant a certain piece of land at a stated price, defendant refused to comply with the contract, claiming that the title offered was defective.

On the facts agreed upon, the court, being of opinion that deed tendered would convey a good title, gave judgment for plaintiffs, and defendant excepted and appealed. The immediate grantor of plaintiffs was James G. Taylor, devise of the tract of land in question, under the will of his father, Jesse Erwin Taylor, and, on the facts agreed, the title offered was properly made to depend upon the construction of the will of said Jesse, in terms as follows:

"ITEM 5. I loan to James G. Taylor during the term of his natural life the following described tract of land, beginning at a gum in Bee Branch, Moye P. Taylor's corner, and running along said Taylor's line 4 25/100 chains; thence S. 55 W. to the line of the lands devised to my daughter, Mollie Smith, in Item 4; thence along said line and along Julian H. Purvis's line and Mrs. Ruth Taylor's line and M. P. Taylor's line to a dead elm in Bee Branch; thence up said branch to the first station; containing 190 acres, more or less; and at the death of said James G. Taylor I give and devise the said land to his heirs at law in fee simple forever."

The case states that James G. Taylor is now living and has two children, and defendant contends that, under said clause, the devisee took only a life estate.

It is established by repeated decisions of the Court that the rule inShelley'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; Price v. Griffin,150 N.C. 523; Edgerton v. Aycock, 123 N.C. 134; Chamblee v. Broughton,120 N.C. 170; Starnes v. Hill, 112 N.C. 1.

In Jones v. Whichard, supra, a very accurate statement of the rule is given, with approval from Preston on Estates, as follows: "When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without interposition of another estate of an interest of the same legal or equitable quality to his heirs, or heirs of his body, as a class of persons to take in succession, (390) from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate."

It is further held here and elsewhere that, in the construction of a will, the word "lend" will be taken to pass the property to which it applies in the same manner as the words "give" and "devise," unless it is manifest that the testator intended otherwise. Sessoms v. Sessoms,144 N.C. 121, citing Cox v. Marks, 27 N.C. 361; King v. Utley, 85 N.C. 59, and other cases.

Applying the principles as approved and stated in these cases, we think it clear that plaintiff's grantor, James G. Taylor, took a fee-simple estate, the devise giving him an estate in the property for life and then to his heirs general to take in succession forever.

There is no error, and the judgment below is

Affirmed.

Cited: Smith v. Smith, 173 N.C. 125; Cohoon v. Upton, 174 N.C. 89; Whitev. Goodwin, 174 N.C. 726; Byrd v. Byrd, 176 N.C. 114; Nobles v. Nobles,177 N.C. 245; Wallace v. Wallace, 181 N.C. 161; Curry v. Curry,183 N.C. 84; Bank v. Dortch, 186 N.C. 512; Fillyaw v. Van Lear,188 N.C. 775; Waller v. Brown, 197 N.C. 510.