Croom v. Cornelius

• Court: North Carolina Supreme Court
• Writing for the Court: DEVIN, Justice
• Citation: Croom v. Cornelius, 219 N.C. 761, 14 S.E.2d 799 (N.C. 1941)
• Decision Date: 31 May 1941
• Docket Number: No. 747.,747.
• Parties: CROOM. v. CORNELIUS.

14 S.E.2d 799

219 N.C. 761

CROOM.

v.CORNELIUS.

No. 747.

Supreme Court of North Carolina.

May 31, 1941.

Appeal from Superior Court, Forsyth County; N. A. Grady, Emergency Judge.

Action to determine title to land by Elizabeth F. Croom against J. H. Cornelius, wherein an agreed statement of facts was filed. From a judgment for the plaintiff, defendant appeals.

Affirmed.

This was an action to determine the title to land, the subject of a contract to convey. Judgment was rendered, upon an agreed statement of facts, that plaintiff's title was good. Defendant appealed.

Hutchins & Parker, of Winston-Salem, for plaintiff.

Henry Roane, of Winston-Salem, for defendant.

DEVIN, Justice.

The determination of the question of title to the land contracted to be conveyed involves the construction of the will of J. P. Fearrington. The testator devised his property to his wife and to their three children (one of whom is the plaintiff) in these words: "I wish my estate of whatever nature equally divided among the aforesaid four." By a subsequent clause the testator added this provision to his will: "In the event that either child die without will, I wish that child's share to descend to his or her children (share and share alike), or if there are no surviving children to go not to any inlaws or other outsiders, but revert to my other children or grandchildren."

The provision first quoted contains an unrestricted devise, and, nothing else appearing, carried the fee. C.S. § 4162; Heefner v. Thornton, 216 N.C. 702, 6 S.E. 2d 506. In the. subsequent clause, the words "in the event that either child die without will, I wish that child's share to descend to his or her children, " must be held repugnant to the estate previously devised and insufficient to limit or divest it. Barco v. Owens, 212 N.C. 30, 192 S.E. 862.

The only difficulty arises upon consideration of the latter portion of the clause, which contains this language: "if there are no surviving children * * * to revert to my other children or grandchildren." By these words it is apparent that the testator intended to provide that in the event either of his three children should die without surviving issue, that child's share should pass to the other children and their lineal descendants. It was admitted that by proper deed all the other devisees under the will have conveyed their interests in the land to the plaintiff. So that whether, under the principle enunciated in Barco v. Owens, supra, the clause should be disregarded, or whether it should be construed as providing a contingency upon the happening of which the title may be defeated, Hampton v. West, 212 N.C. 315, 193 S.E. 290, it is apparent that in the most favorable light for the defendant a fee was devised to the plaintiff and her brother a...