120 S.E. 60 | N.C. | 1923
Plaintiffs have contracted to sell and defendants to buy a tract of land in said county, known as the Reedy Creek land, subject to the life estate of Martha Maynard, widow of Jacob Maynard, deceased, at a specified price, and defendants decline to proceed further on the ground that plaintiffs' title to said land is substantially defective and in violation of the terms and conditions of the contract. On the facts submitted, the court being of opinion that the title is good, entered judgment that defendants comply with the contract of purchase, and defendants except and appeal. The title offered depends upon the proper construction of the last will and testament of Jacob Maynard, deceased, devisor and former owner of the property, the items of the will appertaining to the question presented being in terms as follows:
"I give and bequeath to my oldest son, James Maynard, after the death of my wife or the termination of her widowhood, one-third of my land known as the Reedy Creek land, his lifetime only, and then to his body heirs.
"I give and bequeath to my oldest daughter, Penina Sorrell, after the death of my wife or the termination of her widowhood, one-third of my land known as the Reedy Creek land, his lifetime only, then to her body heirs.
"I give and bequeath to my youngest daughter, Mary King, after the death of my wife or the termination of her widowhood, one-third of my land known as the Reedy Creek land, her lifetime only, then to her body heirs."
In this connection it appears that Jacob Maynard, devisor and former owner, died in 1910, making disposition of the property in his last will and testament as above stated. That the three devisees, his only children and heirs at law, survived the testator, and also his widow, Martha, *512 who is still living. That after the death of said testator, Penina Sorrell died without issue or will, and later, Mary King died, leaving three children as her heirs at law, her husband having died before her. That plaintiff has acquired and holds the title to the property, subject to the life estate of the widow, by formal deeds from J. B. Hill, the latter having purchased and taken deeds in fee sufficient in form from James Maynard and from the three children of Mary King. Upon these facts plaintiff contends that its deed tendered to defendants will convey the entire title subject to the life estate of the widow.
Defendants contend that the title is defective in that, under the will of his father and by its true intent and meaning, James Maynard has only a life estate in the property, the devise being to "James Maynard for his lifetime only, and then to his bodily heirs."
In numerous decisions of the Court, the rule in Shelley's case has been recognized as existent in this State, and in cases calling for its application it is held that it prevails as a rule of property, overruling any particular intent to the contrary appearing in the instrument, deed or will by which the same is created. Hampton v. Griggs,
In the recent case of Hampton v. Griggs, Stacy, J., delivering the opinion, said: "It is further conceded by practically all the authorities that the rule in question is one of law and not one of construction, and that at times it overrides even the expressed intention of the grantor, or that of the testator, as the case may be. But when this is said, it should be understood as meaning that only the particular intent is sacrificed to the general or paramount intent. It is not the estate which the ancestor takes that is to be considered so much as it is the estate intended to be given to the heirs. As said in Baker v. Scott,
In Wallace v. Wallace it was held "That a limitation coming within the rule in Shelley's case, recognized as existent in this State, operates as a rule of property passing, when applicable, a fee simple both in deeds and wills, regardless of a contrary intent on the part of the testator or grantor appearing in the instrument." And a like ruling is approved inNobles v. Nobles and Robeson v. Moore, supra.
In Robeson v. Moore: "It is established by repeated decisions of the Court that the rule in Shelley'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."
Applying these principles, the devise in question to James Maynard for life and then to his bodily heirs, a fee tail under the old law converted by our statute, section 1734, into a fee simple, clearly comes within the rule in Shelley's case, and the first taker has a fee simple notwithstanding the estate of the devise is said to be "for his lifetime only."
The court below, therefore, has made correct ruling on the facts presented, and the judgment that defendants comply with their contract of purchase is
Affirmed. *514