Robeson v. Moore, 168 N.C. 388 (1915)

Feb. 24, 1915 · Supreme Court of North Carolina
168 N.C. 388

W. A. ROBESON et al. v. C. MOORE.

(Filed 24 February, 1915.)

1. Estates — Rule in Shelley’s Case.

The rule in Shelley’s case is a rule of property without regard to the intent of the grantor or devisor, and is recognized as such and applied in the courts of this State in proper instances.

2. Wills — Interpretation—“Lend”—Words and Phrases.

In the construction of a will, the word “lend” will be taken to pass the property to which it applies in the same manner as the words “give” and “devise,” unless it is manifest that the testator intended otherwise.

3. Estates — Limitations—Rule in Shelley’s Case.

Where, under a will, a tract of the testator’s land is “loaned” to T.. during the term of his natural .life, and at his death it is devised to his heirs at law in fee simple, the rule in Shelley’s case applies and T. takes the land in fee simple.

*389Appeal by defendant from Ferguson, J., at December Term, 1914, of Martin.

Controversy submitted without action.'

On the bearing it appeared that plaintiffs, having contracted to sell and convey to defendant a certain piece of land at a stated price, defendant refused to comply with the contract, claiming that rthe title offered was defective.

On the facts agreed upon, the court, being of opinion that deed tendered would convey a good title, gave judgment for plaintiffs, and defendant excepted and appealed.

H. W. Stubbs and A. A. Dunning for plaintiff.

Glayton Moore for defendant.

HoKE, J.

The immediate grantor of plaintiffs was James G. Taylor, devisee of the tract of land in question, under the will of his father, Jesse Erwin Taylor, and, on the facts agreed, the title offered was properly made to depend upon the construction of the will of said Jesse, in terms as follows:

“Item; 5. I loan to James G. Taylor during the term of his natural life the following described tract of land, beginning at-a gum in Bee Branch, Moye P. Taylor’s corner, and running along said Taylor’s line 42%oo chains; thence S. 55 W. to the line of the lands devised to my daughter, Mollie Smith, in Item 4; thence along said line and along Julian H. Purvis’s line and Mrs. Euth Taylor’s line and M. P. Taylor’s line to a dead elm in Bee Branch; thence up said branch to the first station; containing 190 acres, more or less; and at the death of said James G. Taylor I give and devise the said land to his heirs at law in fee simple forever.”

The case states that James G. Taylor is now living and has two children, and defendant contends that, under said clause, the devisee took only a life estate.

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. Jones v. Whichard, 163 N. C., 243; Price v. Griffin, 150 N. C., 523; Edgerton v. Aycock, 123 N. C., 134; Chamblee v. Broughton, 120 N. C., 170; Starnes v. Hill, 112 N. C., 1.

In Jones v. Whichard a very accurate statement of the rule is given, with approval from Preston on Estates, as follows: “When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without interposition of another estate of an interest of the same legal or equitable quality to his heirs, or heirs of *390bis body, as a class of persons to take in succession, from generation to generation, tbe limitation to tbe beirs entitles tbe ancestor to tbe whole estate.”

It is further held here and elsewhere that, in tbe construction of a will, tbe word “lend” will be taken to pass tbe property to which it applies in tbe s^me manner as tbe words “give” and “devise,” unless it is manifest that tbe testator intended otherwise. Sessoms v. Sessoms, 144 N. C., pp. 121-124, citing Cox v. Marks, 27 N. C., 361; King v. Utley, 85 N. C., 59, and other cases.

Applying tbe principles as approved and stated in these cases, we think it clear that plaintiff’s grantor, James G-. Taylor, took a fee-simple estate, tbe devise giving him an estate in tbe property for life and then to bis beirs general to take in succession forever.

There is no error, and tbe judgment below is