Citation Numbers: 122 S.E. 301, 187 N.C. 535
Judges: Clark
Filed Date: 4/9/1924
Status: Precedential
Modified Date: 10/19/2024
This is an action to enforce a contract by the defendant to pay the plaintiff $2,500 for the land described in the pleadings, provided the plaintiff could convey to the defendant a deed in fee simple with full covenants of warranty, which he subsequently refused to do.
The case turns upon the construction of the will of Martha E. Sides, a widow at the date of her death, without children, who had adopted Lessie I. Walker. The defendant in this case is a kinsman of the plaintiff and also of the testatrix and is willing to pay the purchase-money if Lessie I. Walker can make him a deed in fee simple to said property. The third paragraph of the will is as follows: "I give and bequeath to Lessie I. Walker, whom I adopted as my own child, my house and lot, also lot of land known as the shop lot in Bethania below the house, to be hers her lifetime, and if at the time of her death she should leave any heirs, it is to be theirs; if not any heirs, it is to go to my brother, Charlie A. Butner, whom I appoint as my lawful executor." Charlie A. Butner is a kinsman of the plaintiff and defendant, and prior to the institution of this action executed a deed conveying all of his right, title and interest in the land described in said paragraph to the plaintiff.
The sole question that arises is what interest Lessie I. Walker took under this will. The following is the concise definition of the rule inShelley's case, 1 Coke, 104: "When the ancestor by any gift or conveyance taketh an estate of freehold and in the same gift or conveyance the estate is limited either mediately or immediately to his heirs, in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase."
These words have been construed in the leading cases of Morrisett v.Stevens,
It therefore follows upon the plain language of the will that the plaintiff, Lessie Walker, took a fee simple in the land, defeasible, however, if she die leaving no heirs, in which case it would go to Charlie A. Butner.
Any deed therefore which she should make to the plaintiff would be a valid fee simple, subject to be divested if she should die leaving no *Page 537
heirs. Whitfield v. Garris,
But that possible defect is cured by the fact that in such event the property would go over to Charlie A. Butner, who has already conveyed by deed to Lessie I. Walker all right, title and interest which he might have in the property in the event of her death without heirs.
In Puckett v. Morgan,
In Nichols v. Gladden,
The history of the origin and the reason of the rule are stated in the concurring opinion in Cohoon v. Upton,
The nonsuit granted by the court below and the decree that the plaintiff held only a life estate in the land is
Reversed. *Page 538
Sessoms v. . Sessoms , 144 N.C. 121 ( 1907 )
Puckett v. . Morgan , 158 N.C. 344 ( 1912 )
Morrisett v. Stevens. , 136 N.C. 160 ( 1904 )
Whitfield v. Garris. , 131 N.C. 148 ( 1902 )
Nichols v. . Gladden , 117 N.C. 497 ( 1895 )
Elmore v. Austin , 232 N.C. 13 ( 1950 )
Hales v. . Renfrow , 229 N.C. 239 ( 1948 )
Welch v. . Gibson , 193 N.C. 684 ( 1927 )
Hudson v. . Hudson , 208 N.C. 338 ( 1935 )
White v. Lackey , 40 N.C. App. 353 ( 1979 )
Tremblay v. Aycock , 263 N.C. 626 ( 1965 )
Shephard v. . Horton , 188 N.C. 787 ( 1924 )
Merritt v. . Inscoe , 212 N.C. 526 ( 1937 )
Benton v. . Baucom , 192 N.C. 630 ( 1926 )
Hartman v. . Flynn , 189 N.C. 452 ( 1925 )