91 S.E. 721 | N.C. | 1917
There was judgment for plaintiff, and defendants excepted and appealed. Plaintiff's title to the land, the subject-matter of this litigation, is dependent on the will of his father, Joshua W. Smith, deceased, the devise to plaintiff being in terms as follows:
"I loan to my son, D. L. Smith, two tracts of land (describing same), to have during his life, at his death to his bodily heirs and to his wife her lifetime or widowhood," etc., and charging the devisee with payment of certain small amounts in money to persons designated.
The plaintiff, contending that he owns the land in fee, under the rule in Shelley's case, subject to a life estate in his widow, brings this (125) action against his minor children, alleging that they contend and claim that plaintiff has, under the will, only a life estate in the property, and, by reason of such claim, he is unable to sell or encumber his interests or otherwise enjoy the rights of ownership to which his estate entitles him.
Defendants, summoned and duly represented by guardian ad litem, answer, admitting the allegations in the complaint except as to nature and extent of plaintiff's estate, and aver that under the will plaintiff had only an estate for life. Under our statute, Revisal, sec. 1589, by which the powers formerly exercised in cases of this character have been much enlarged, the court had undoubted and full jurisdiction to determine the question presented. Little v. Efird,
We have held in several of the more recent cases that the word "lend" or "loan," in a will, will be taken to pass the property to which it applies in the same manner as "give" or "devise," unless it is manifest that the testator otherwise intended. Robeson v. Moore,
On the facts admitted, the plaintiff is entitled to the relief awarded him, and the judgment below is
Affirmed.
Cited: Cohoon v. Upton,