International Agricultural Corp. v. . Johnson

Mar 18, 1931
Versions:200 N.C. 465
157 S.E. 436
1931 N.C. LEXIS 361
Adahs, J.

Since Martha J. Spell, tbe testator’s widow, died several years ago tbe second item of tbe will may be disregarded. Tbe controversy involves tbe construction of tbe third clause — tbe devise to Jobn Morris Spell, tbe testator’s son. What estate did be take?

Tbe case of Smith v. Brisson, 90 N. C., 284, presented for review tbe trial court’s interpretation of tbe following provision in a deed executed by Rowland Mercer, Sr., to Rowland Mercer, Jr.: “For and in consideration of tbe natural love and affection I have for my son, Rowland Mercer, and tbe further sum of one dollar to him in band paid, tbe receipt of which is hereby acknowledged has given, granted, bargained, sold and conveyed, and do hereby give, grant, bargain, sell and convey to tbe said Rowland Mercer and tbe heirs of bis body, and if tbe said Rowland Mercer should have no heirs, tbe said land shall go to tbe heirs of my son James A. Mercer, all tbat tract of land,” described as in tbe complaint.

In an opinion delivered by Ashe, J., the Court said tbat tbe deed should be construed as if it read, “To tbe said Rowland Mercer and tbe heirs of bis body, and if tbe said Rowland Mercer should die not having such heirs living at tbe time of bis death, tbe said land shall go to tbe children of my son James A. Mercer.” It was held tbat tbe limitation over was good.

A similar construction was given to conveyances in Williams v. Blizzard, 176 N. C., 146, and in Willis v. Trust Co., 183 N. C., 267. These decisions are controlling in tbe present case. Tbe language construed in tbe cases cited is easily distinguishable from tbat which was used in tbe will set out in Daniel v. Bass, 193 N. C., 294. Judgment

Affirmed.