Elkins v. . Seigler

70 S.E. 636 | N.C. | 1911

This is an action submitted without controversy under Revisal, 803, to obtain the construction of the following item in the will of Mary W. Freeman: "I give and devise to my friend, Louis Chapman, for the term of his natural life, and after his death to Louisa Jones, and to the child or children of her body, forever: Provided, if the said Louisa Jones dies without leaving any children, then, and in no other case, to my lawful heirs, all my real estate," etc., etc.

Mary W. Freeman died 3 November, 1894, and Louis Chapman died in 1901. Louisa Jones at the death of Mary Freeman was single. In November, 1894, she married James B. Elkins and has never had any children. She contracted to deliver to the defendant a fee-simple deed for the land in question in consideration of the sum of $600. She has tendered a fee-simple deed in warranty. The defendant declined to accept the deed and pay the purchase money, on the ground that the plaintiff could not execute a good deed in fee simple. His Honor (375) properly so held, and rendered judgment against the plaintiff.

The point here presented was decided in Whitfield v. Garris,131 N.C. 148, and on rehearing was reaffirmed in an opinion by Walker,J., with a wealth of authority and force of reasoning which leaves nothing to be added. 134 N.C. 24. It was held that such devise vests a fee simple in the devisee, defeasible upon her dying without leaving a child. This case has been cited and approved, Cheek v. Walker,138 N.C. 449; Anderson v. Wilkins, 142 N.C. 161;Harrell v. Hagan, 147 N.C. 113; Dawson v. Ennett,151 N.C. 545.

It is true, as contended by the plaintiff, that if Louisa Elkins had children living at the death of the testator she and the children would have taken as tenants in common, and that if she had no children at that time she would have taken a fee simple (Silliman v. Whitaker, 119 N.C. 89), as plaintiff's counsel contends. But his argument leaves out of consideration a material fact, that under the terms of this will it is a fee simple defeasible if said Louisa should die without leaving a child. A purchaser is never required to accept a doubtful title. Batchelor v. Macon,67 N.C. 181.

Affirmed.

Cited: Bullock v. Oil Co., 165 N.C. 68; Rees v. Williams, ib., 208.