Kirkman v. Smith

• Decision Date: 28 November 1917
• Docket Number: (No. 454.)
• Citation: 174 N.C. 603,94 S.E. 423
• Court: North Carolina Supreme Court
• Parties: KIRKMAN et al. v. SMITH.

94 S.E. 423

(174 N.C. 603)

KIRKMAN et al.

v.SMITH.

(No. 454.)

Supreme Court of North Carolina.

Nov. 28, 1917.

Appeal from Superior Court, Mecklenburg County; Cline, Judge.

Action by M. G. and Guy C. Kirkman against Theodore Smith. Judgment dismissing the action, and plaintiffs appeal. Affirmed.

The plaintiffs alleged in their complaint:

"(1) That the defendant made and executed a written agreement, by which he contracted to purchase a certain tract of land in Clear Creek township, containing 132 acres, from the plaintiffs for $4,000, provided the plaintiffs can convey a good title in fee to the same.

"(2) In pursuance of said written agreement, the plaintiffs have tendered a deed sufficient in form to convey to the defendant the lands described in the written agreement hereinbefore set out, and have demanded the purchase price therefor, in accordance with the terms of the agreement. \

"(3) The defendant has refused to accept said deed, and still refuses to accept it, giving as his reason and excuse, not any objection to the form or substance of the deed itself, but that the plaintiffs were not vested with an absolute title in fee simple to said land by the will of D. W. Flow, under which they claim the-same, and cannot pass such a title to him.

"(4) The part of the will of D. W. Flow devising the lands reads as follows: 'Second. To Margaret G. Kirkman, one tract of land known as the Harkey place, supposed to be about 132 acresi adjoining the lands of Mrs. Helena Morrison, X. A. Houston and adjoining my home tract, to be hers her lifetime, and then to go to Guy Kirkman and Marvin Kirkman, and, if they should die without any bodily heirs, then said land to go back to the Flow heirs.'

"(5) Margaret G. Kirkman is the daughter of D. W. Flow, and was a widow at the time D. W. Flow made his will, and Guy and Marvin Kirkman were her two sons, and her only children, and as such the grandsons of the said testator, D. W. Flow.

"(6) The will is dated October 27, 1S93, and was duly and properly probated and recorded in the office of the clerk of the superior court of Mecklenburg county.

"(7) That Marvin Kirkman died intestate in the year 1903, he then being unmarried, and a young man only 18 years of age, leaving no issue or lineal descendants, and that Guy Kirkman mentioned in that part of the will above quoted is the same person as G. C. Kirkman, one of the plaintiffs herein, and that he is now 30 years of age, and has a wife and two living children, who are 9 and 7 years of age, respectively.

"(8) That solely on account of the facts before stated the defendant refuses to accept the title to the lands in question, and pay for the same in accordance with his contract, insisting that on account of said facts he would not and could not obtain from plaintiffs an absolute fee-simple title to said lands."

The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

The court sustained the demurrer, and, as plaintiffs admitted that they could not improve their case by amendment, and desired to have the same finally decided upon the present complaint, the court dismissed the action, and taxed plaintiffs with the costs, and they thereupon appealed.

Thaddeus A. Adams, of Charlotte, for appellants.

WALKER, J. (after stating the facts as above). [1] It is clear that by the deed which has been tendered an absolute fee-simple title would not pass to the purchaser of the land, if the deed should be accepted. The clause of the will in question is the same as if it had read:

"To Margaret Kirkman for life, and then to Guy Kirkman and Marvin Kirkman and their heirs, and if tbey should die without any bodily heirs, then the land to go over to the Flow heirs."

This follows from the provision of our statute (Revisal, § 3138) that every devise of real estate shall be held and construed to be a devise in fee simple unless otherwise plainly expressed or intended by the will, or some part, thereof, that the testator's purpose was to pass an estate of less dignity. The limitation in remainder to the two sons was of an estate in fee, but subject to be terminated...