Whitehead v. Weaver, 153 N.C. 88 (1910)

Sept. 29, 1910 · Supreme Court of North Carolina

153 N.C. 88

ELIZABETH WHITEHEAD et al. v. MARY ELIZA WEAVER et al.

(Filed 29 September, 1910.)

Estates — Remainders—Deeds and Conveyances — Interpretation.

An estate to D. for life, then to W. and the children of P., the said W. surviving the life tenant; Held, W. and the eight children of P. held in common an undivided one-ninth interest, each; and at the time of proceedings in partition the said W. being • dead, her one-ninth interest descended to her three children.

Appeal from Guión, J., at the February Term, 1910, of WlLSON. •

- The facts are stated in the opinion.

Appeal by defendants from the clerk of Superior Court of Wilson in a petition for partition. Both parties claim under a deed from S. A. Woodard, 21 January, 1884, to Jesse P. Dixon and wife, Elizabeth, for 400 acres. The habendum is as follows: “To have and to hold, to them, the said Jesse P. Dixon and wife, for life, and the life of each of them, and after the death of the survivor, then to tbe living sister and tbe children of tbe deceased sister or sisters of tbe said Elizabeth Dixon, in fee, and in tbe event of tbe death of tbe living sister of tbe said Elizabeth Dixon without issue living at her death, before tbe death of tbe said Jesse P. Dixon and wife, and both of them, then tbe whole of tbe said land shall go to tbe children of tbe other sister in fee.

“Tbe purpose of this deed is to vest tbe title of tbe said land in tbe said Jesse P. Dixon and wife for their joint lives, then in tbe survivor for bis or her life, and then in Polly Whitehead and tbe children of Penina Dixon, deceased, and if at tbe death of tbe said Dixon and wife, or tbe survivor, tbe said Polly Whitehead shall be dead without issue living at her death, then to tbe children of tbe said Penina Dixon in fee simple.”

Jesse P. Dixon and wife are dead. Polly Whitehead bad since died, leaving three children, these plaintiffs. Tbe defendants are tbe eight “children of Penina Dixon.” Tbe clerk adjudged that Polly Whitehead was seised of one-ninth undivided interest in the land. The judge reversed this and held that she was owner of an undivided one-half, and the defendants appealed.

Pou & Finch and Murray Allen for plaintiffs.

Daniels & Swindell for defendants.

Clark, C. J.

The conveyance of the remainder to “Polly Whitehead and the children of Penina Dixon, deceased,” vested such remainder in fee in them as tenants in common, an undivided one-ninth interest to each, there being eight children of Penina Dixon. Upon the death of Polly Whitehead, who died after the life tenancy ceased, her undivided one-ninth descended to her three children, the plaintiffs herein.

In Helms v. Austin, 116 N. C., 752, a deed to “Sarah Staton and her children” was held to convey a fee simple to said Sarah and children as tenants in common. This was cited and approved. Darden v. Timberlake, 139 N. C., 182.

In King v. Stokes, 125 N. C., 514, the words “Unto Alfred May during the term of his natural life, and after his death to his wife, the said Ida Eugenia, and her children” were held to confer a remainder upon said wife and children as tenants in common. In Gay v. Baker, 58 N. C., 344, the conveyance in trust for a woman and her children was held to make the mother and children tenants in common. The same construction was held as to a devise in Moore v. Leach, 50 N. C., 88; Hunt v. Satterwhite, 85 N. C., 73; Hampton v. Wheeler, 99 N. C., 222.

In Silliman v. Whitaker, 119 N. C., 89, it was held that a devise to “S. and her children, if she shall have any,” vested the title in S. and her children as tenants in common.

The ruling below that the devise carried a half interest to Polly Whitehead must be

Reversed.