Harward v. Edwards, 185 N.C. 604 (1923)

Feb. 28, 1923 · Supreme Court of North Carolina

185 N.C. 604

F. B. HARWARD and NINA HARWARD v. C. C. EDWARDS.

(Filed 28 February, 1923.)

Estates — Remainder—Fee Tail — Statutes—Fee Simple — Deeds and Conveyances.

An estate to H. during lier life, witb. remainder to tbe testator’s son “and bis bodily lieirs,” vests a life estate in tbe land in H., witb an estate tail, in remainder to tbe son, wliicb, under our statute, is converted ■ into a fee simple. C. S., 1734. And upon tbe falling in of tbe life estate, tbe son can convey a good fee-simple title. ChamMee v. Broughton, 120 N. C., 170; Leathers v. Gray, 101 N. C., 163, cited and distinguished.

Appeal by defendant from Horton, Jat January Term, 1923, of Chatham.

Civil action, heard on an agreed statement of facts. There was a judgment for the plaintiffs, and the defendant appealed.

No counsel for plaintiff.

Long & Bell for appellant.

Adasis, J.

On 20 December, 1922, the plaintiffs contracted to sell and convey to the defendant at an agreed price a tract of land containing 140 acres. At tbat time the defendant made a small casb payment and agreed to pay the additional sum of $1,400 upon delivery to bim by the plaintiffs of their deed conveying an indefeasible title in fee. the plaintiffs made tender of their deed and demanded payment of the remainder of the purchase money, and the defendant declined to comply witb such demand on the ground tbat the plaintiffs could not convey a good title.

The plaintiff F. B. Harward derived title to the land through bis father’s will, and the validity of bis title depends upon the interpretation of the second and third items, which are as follows: '

“2d. I give and devise to my bel’oved wife Martha Ann Harward all my property, real, personal, and mixed, of what nature or kind soever, and wheresoever the same shall be at the time of my death. During her life, at her death I give and bequeath unto Donnie Harward’s two children twenty-five dollars each, namely Leo and Lelier May Harward.

“3d. And whatsoever is remaining of my real and personal property I give and devise to my son E. B. Harward and bis bodily heirs at bis death.”

The devisor and bis wife are dead. These two clauses of the will vested in Martha Ann Harward a life estate in the land witb an estate tail in remainder to f. B. Harward, which by virtue of the statute is made a fee simple. C. S., 1734; Parrish v. Hodge, 178 N. C., 133; Keziah v. Medlin, 173 N. C., 237; Revis v. Murphy, 172 N. C., 579; Sessoms v. Sessoms, 144 N. C., 121; Willis v. Trust Co., 183 N. C., 267.

It will be observed tbat the testator did not devise the land to F. B. Harward for life, witb remainder to bis bodily heirs. In this respect the case at bar differs from Chamblee v. Broughton, 120 N. C., 170, and Leathers v. Gray, 101 N. C., 163 (overruling the former decision in 96 N. C., 548), and similar cases, in which the rule in Shelley’s case was applied.

His Honor was correct in adjudging tbat tbe plaintiffs can convey an estate in fee, and tbe judgment accordingly is

Affirmed.