Gilmore v. Sellars, 145 N.C. 283 (1907)

Oct. 23, 1907 · Supreme Court of North Carolina

145 N.C. 283

A. G. GILMORE et al. v. W. R. SELLARS et al.

(Filed 23 October, 1907).

Wills — Devise—Estates for Life — Dower^—Remainder—Rule in Shelly’s Case.

A devise to J. P. of lands, etc., for tbe sole use and benefit of E. R. and bis family, and tbe whole of tbe property at tbe death of E. R. “to belong to his lawful heirs, share and share alike,” conveys only a life estate in tbe lands to tbe first taker, with no right of dower in bis widow, and with tbe remainder to tbe heirs, per capita, as purchasers under tbe will.

Civil actiow, tried before Gouncill, J., at February Term, 1907, of tbe Superior Court of ANSON County.

This is a special proceeding, instituted in tbe Superior Court of Anson County, wherein tbe petitioner, L. IT. Gilmore, seeks to have dower allotted to her in tbe lands described in tbe petition. Defendants answered, and tbe cause came on for bearing before tbe Clerk, and, by appeal, to tbe Judge presiding.

The material facts appearing upon tbe petition and answer are: Elijah Ratliff, by bis last will and testament, devised tbe land in controversy and several negro slaves to John P. Ratliff, upon tbe following trustsj to-wit: “For tbe sole use and benefit of my son, Eli Ratliff, and bis family; said property to be entirely under the control of my son-in-law, John P. Ratliff, in sucb manner as not to be subject to any of bis debts, contracts, liabilities or encumbrances whatever, and the whole of the above-mentioned property, with all of its increase, at the death of my son, Eli Ratliff, to belong to his lawful heirs, share and share alike.” Eli Ratliff intermarried with feme petitioner, and died during the year 1884, leaving surviving the defendants, his children and heirs at law, who took possession of the lands, and, together with those of the defendants, who are grantees of some of the children, have been in possession since that time. Partition was had in 1890. Petitioner, after the death of Eli, intermarried with A. G. Gilmore.

His Honor, being of the opinion that petitioner was not entitled to dower, affirmed the judgment of the Clerk. Petitioner appealed.

No counsel for plaintiffs.

II. II. McLendon for defendants.

CoNNOR, J.,

after stating the facts: It is immaterial whether the trust declared in the will was, during the life of Eli Ratliff, active and not executed by the statute, or whether it was passive, in which case, by the operation of the statute, the legal title vested in Eli. The right of the petitioner to dower depends upon the estate which her husband took under the will. It is clear that, if the words “share and share alike” had not followed the words “to belong to his lawful heirs,” he would, under the rule in Shelly s case, have taken a fee simple. While there are no words expressly limiting his interest to a life estate, that it was the intention of the testator to do so is manifested by the use of the words “after the decease of my son, Eli Ratliff, to belong to,” etc. The exact question was decided by this Court in a .well-sustained opinion by Judge Ashe in Mills v. Thorne, 95 N. C., 362. There the limitation to the heirs of the devisee was followed by the words “to share and share equally.” The learned Justice, after reviewing the adjudged cases, says: “The consideration we have given the question leads us to the conclusion that the rule in Shelly’s case does not apply in this case; that the words ‘to share and share equally’ indicate an intention on the part of the testator to give the property to his sister and her heirs, * * * to be divided between them as tenants in common, * " * to be distributed per capita between such persons as may bring themselves under that description when the life estate terminated.” The “lawful heirs” of Eli Eatliff take-per capita as purchasers under the will of their grandfather, thus limiting his interest to a life estate, to which, of course, no right to dower attached.

His Honor’s judgment was correct, and must be

Affirmed.