Dawson v. Ennett

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE
• Citation: Dawson v. Ennett, 151 N.C. 543, 66 S.E. 566 (N.C. 1909)
• Decision Date: 23 December 1909
• Parties: DAWSON. v. ENNETT.

(151 N.C. 543)

66 S.E. 566

DAWSON.

v.ENNETT.

Supreme Court of North Carolina.

Dec. 23, 1909.

Wills (§ 602^*)—Estate Conveyed—Defeasible Pee.

A will loaned all of testator's realty to his wife during her life, and after her death gave it to his grandchild to be held by her, her heirs, etc., forever, but provided that if she die without issue it should go to his nephew. Held, that upon the wife's death the grandchild took a fee, defeasible upon her dying without living issue, when the land would pass to the nephew.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1354; Dec. Dig. § 602.*]

Appeal from Superior Court, Craven County; Guion, Judge.

Action by N. B. Dawson against G. N. Ennett. From a judgment sustaining demurrer to the complaint, plaintiff appeals. Affirmed.

T. D. Warren, for appellant.

Simmons, Ward & Allen, for appellee.

HOKE, J. The plaintiff, having acquired and holding the estate and interest of Marietta O'Leary in a certain piece of land in said county, bargained the same to defendant at the contract price of $400, and agreed to convey a good title. Defendant having failed to pay, the present action was instituted to recover the purchase price, and defendant resisted recovery, assigning for cause that the title offered was not a good one. The title of plaintiff was averred to depend upon the estate and interest taken by Marietta O'Leary, as devisee, under the will of Wm. Daniel O'Leary, deceased; and the contents of the will, and the facts relevant to the question presented, are stated in the complaint as follows: "(1) 'I loan to my beloved wife, Sarah Ann O'Leary, at my death all my real estate during her natural life.' (2) 'After the death of the said Sarah Ann O'Leary and at my death, I give and bequeath to my grandchild, Marietta O'Leary, all of the real estate and one-half of the personal estate loaned to the said Sarah Ann O'Leary during her natural life, belonging to me at my death, both real and personal, to be held by her, her heirs, executors, administrators or assigns forever.' (3) 'But if the within mentioned grandchild, Marietta O'Leary, die without an issue, in that case I give and bequeath to my nephew, Francis Castex, all my real estate at my death and at the death of my wife, Sarah Ann O'Leary, to the said, Francis Castex, to be held by him, his heirs, executors, administrators or assigns forever.' (4) Said Wm. D. O'Leary died in 1865, said Sarah Ann O'Leary died shortly after, and said Marietta O'Leary is still living. Said Marietta O'Leary was the mother of one child, long since deceased, and said Marietta O'Leary has no living descendants."

Upon these facts, our authorities are to the effect that, under the will of Wm. Daniel O'Leary, the devisee Marietta took an estate in fee simple defeasible on her dying without issue living at the time of her death. Harrell v. Hagan, 147 N. C. 111, 60 S. E. 909, 125 Am. St. Rep. 539; Sessoms v. Sessoms, 144 N. C. 121, 56 S. E. 687; Whitfield v. Garris, 134 N. C. 24, 45 S. E. 904; Wright v. Brown, 116 N. C. 26, 22 S. E. 313; Buchanan v. Buchanan, 99 N. C. 308, 5 S. E. 430; Smith et ux. v. Brisson et ux., 90 N. C. 284; Gibson v. Gibson, 49...