Barbee v. Thompson
| Decision Date | 26 October 1927 |
| Docket Number | (No. 336.) |
| Citation | 139 S.E. 838 |
| Parties | BARBEE et al. v. THOMPSON et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Durham County; Midyette, Judge.
Special proceeding by Emma Barbee and others against Oscar Thompson and others to partition lands. From a judgment for the named defendant, plaintiffs appeal. Affirmed.
Special proceeding to partition lands alleged to be owned by the plaintiffs and defendants as tenants in common. The defendant, O. D. Thompson, set up a plea of sole seizin, and from a judgment in his favor, the plaintiffs appeal, assigning error.
R. O. Everett and R. M. Gantt, both of Durham, for appellants.
D. W. Sorrell and Fuller, Reade & Fuller, all of Durham, for appellees.
STACY, C. J. [1] On the hearing, the legal question presented was properly made to depend upon the construction of the following provision in the will of John G. Thompson:
"Item 3rd: After the death of my wife, Leana Thompson, I give and bequeath all my real estate to my daughters, Berthena Thompson, and, Martha H. Thompson—I also bequeath to my daughter Tyrinda H. Fletcher, an equal life interest in my real estate with my daughters, Berthena Thompson, and Martha H. Thompson, or so long as the said Tyrindaena (sic) H. Fletcher may remain in widowhood."
It is agreed that, if Berthena Thompson and Martha H. Thompson take a fee-simple estate in the real estate devised in item 3 of the will of John G. Thompson, the defendant O. D. Thompson is now the sole owner of the lands described in the petition, but, if Berthena and Martha H. Thompson take only a life estate under said devise, then, it is agreed, the plaintiffs and said defendant are tenants in common, and entitled to partition the lands in question.
His honor correctly held that Berthena Thompson and Martha H. Thompson acquired a fee-simple estate in the lands devised in item 3 above. The testator, in undertaking to "bequeath" an interest in his real property to his married daughter, Tyrinda H. Fletcher (who died without having remarried), evidently intended to provide a home for her for life or during her widowhood. But no such limitation is annexed to the devise to Berthena Thompson and Martha H. Thompson, and there is nothing in the will to ascribe to the testator an intention to convey to them an estate of less dignity than a fee simple.
It is provided by C. S. § 4162, that, when real estate is devised to any person, the same shall be held and construed to be a devise in fee...
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......Robinson, 189 N.C. 628, 127 S.E. 626;[47 S.E.2d 233] Daniel v. Bass, 193 N.C. 294, 136 S.E. 733; Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838; Lineberger v. Phillips, 198 N.C. 661, 153 S.E. 118; Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817; ......
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Stephens v. Clark, 750.
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