75 S.E. 993 | N.C. | 1912
Ejectment. On the admissions in the pleadings and the facts in evidence agreed upon by the parties, including the original will as an exhibit, there was judgment for plaintiffs, and defendant excepted and appealed. The rights of these parties were properly made to depend on the construction of the will of D. G. Morrisey, deceased, more especially the fourth clause thereof, in terms as follows:
"4. I give to my adopted baby, Maggie L. Bass, all my real estate on the south side of College Street through to Bay Street, also all the land known as the Summerland land on the west side of the public road running out by Carlton's, during her natural life, and if she marries and leaves heirs from such marriage, to such heirs in fee simple; also $100 in money. If she dies and leaves no heirs from such marriage, all the real estate loaned her to be divided between Junius Chestnut, (149) son of my nephew, Junius M. Chestnut, and D. G. Morrisey, Jr., son of my nephew, John M. Morrisey."
The Maggie L. Bass referred to went into possession of the land under said will and intermarried with defendant B. C. Moore and died on 31 March, 1911, without leaving child or children or lineal descendants of a marriage then living. There had been issue of the marriage born alive during coverture. Plaintiffs are the Junius Chestnut and the three children and heirs at law of the D. G. Morrisey, deceased, the ultimate devisees in said fourth item of the will, and make their claim as such, contending that Maggie L. Bass took a life estate in all the property mentioned, with remainder to said claimants.
Defendant B. C. Moore contends that said Maggie L. Bass took the first portion of the land in fee, and that he is entitled to hold said portion as tenant by curtesy.
Upon these the controlling facts relevant to the inquiry, we think his Honor correctly ruled that plaintiffs are the owners and entitled to the present possession of the property.
Under our decisions the will conferred upon Maggie L. Bass a life estate, remainder to her children, and in case she died without children or issue of her marriage then living, all the real estate loaned to her to be divided between Junius Chestnut and D. G. Morrisey, deceased, the father of the other plaintiffs. Smith v. Lumber Co.,
Under the clause in question the property is treated as a whole. There is no punctuation and nothing that gives indication that the testator intended to differentiate the one portion from the other in reference to the quantity of the estate. "The word lend is not infrequently used as synonymous with give or bequeath or devise," and this should be the interpretation unless it is manifest that a different meaning was intended (Sessoms v. Sessoms,
On the question presented the case is not dissimilar to that of Hyman v.Williams,
Affirmed.
WALKER and ALLEN, JJ., did not sit.
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