Tyson v. Sinclair, 138 N.C. 23 (1905)

April 4, 1905 · Supreme Court of North Carolina

138 N.C. 23

TYSON v. SINCLAIR.

(Filed April 4, 1905.)

Wills — Pule in Shelley’s Case.

Where a will provided, “I devise to my grandson,, my storehouse and lot during the term of his natural life, then to the lawful heirs of his body in fee simple, on failing of such lawful heirs of his body, then to his right heirs in fee,” the limitation over “on failing of such lawful heirs of his body, then to his right heirs in fee,” does not prevent the operation of the Rule in Shelley’s ease and the grandson took an estate in fee simple.

AaTiosr by L. P. Tyson and others against J. P. Sinclair, and others, heard by Judge G. W. Ward at the Spring Term, 1904, of the Superior Court of Moore County.

This was a civil action to compel the specific performance of a contract for the sale of land, heard upon the facts alleged and admitted in tbe pleadings. Tbe defendants appealed from tbe judgment rendered.

W. J. Adams, for tbe plaintiffs.

No counsel for tbe defendants.

Brown, J.

Tbe case turns upon tbe construction of tbe second paragraph of tbe will of Tbomas B. Tyson, to-wit, “I give and devise to my grandson, Tbomas B. Tyson, my store bouse and lot in .tbe town of Oartbage, adjoining tbe public square and opposite my dwelling bouse, with all tbe buildings tbereon situated, during tbe term of bis natural life, then to tbe lawful beirs of bis body in fee simple, on failing of sucb lawful beirs of bis body, then to bis right beirs in fee.”

Ilis Honor in tbe court below adjudged that.under this will, Tbomas B. Tyson, tbe grandson, took an estate in fee simple. We think this construction tbe proper one. Tbe rule in Shelley’s Case applies and is in force in this State. Starnes v. Hill, 112 N. C., 1. It applies to devises as well as conveyances. Chamblee v. Broughton, 120 N. C., 175. It apjilies when tbe same persons will take tbe same estate, whether they take by descent -or purchase; in which case they are made to take by descent; but when tbe persons taking by purchase would be different or have different estates than they would take by descent from tbe first taker, tbe Buie does not apply, and tbe first taker is confined to an estate for life, and “tbe beirs, beirs of tbe body etc.” take as purchasers. Ward v. Jones, 40 N. C., 401.

We have not been favored with either brief or argument upon tbe part of tbe appellant in this case, and are at a loss to understand upon what words in tbe paragraph of tbe will he relies to distinguish this case from numerous others like it in tbe books. Patrick v. Morehead, 85 N. C., 62; Leathers v. Gray, 101 N. C., 162. Tbe limitation over, “on failing of snob lawful beirs of tbe body then to bis right beirs in fee,” does not prevent tbe operation of tbe rule. If tbe limitation over bad been to “tbe next of kin” then tbe Rule would not apply. “Any words added to tbe limitation wbieb carry tbe estate to any other person, in any other manner or in any other quality than tbe Canons of Descent provide, will take tbe case out of tbe operation of the Rule, and limit tbe first taker to a life estate.” May v. Lewis, 132 N. C., 117. Tbe words used in this case are “to bis right beirs in fee.” Tbe limitation over carries tbe estate just as it would go under tbe Canons of Descent, both in manner and quality Nichols v. Gladden, 117 N. C., 497. The judgment is

xlffirmed.