Early v. Tayloe

• Decision Date: 26 March 1941
• Docket Number: 169.
• Citation: Early v. Tayloe, 219 N.C. 363, 13 S.E.2d 609 (N.C. 1941)
• Parties: EARLY v. TAYLOE.
• Court: North Carolina Supreme Court

13 S.E.2d 609

219 N.C. 363

EARLY v. TAYLOE.

No. 169.

Supreme Court of North Carolina

March 26, 1941

Controversy without action submitted on an agreed statement of facts.

Plaintiff being under contract to convey to the defendant a 607-acre tract of land, known as "Tract No. Six (6) of the A. W Early Estate Lands", duly executed and tendered deed sufficient in form to invest the defendant with a fee-simple title to the property, and demanded payment of the purchase price as agreed, but the defendant declined to accept the deed and refuses to make payment of the purchase price on the ground that the title offered is defective.

The court being of opinion that, upon the facts agreed, the deed tendered was sufficient to convey a fee-simple title to the locus in quo, gave judgment for the plaintiff, from which the defendant appeals, assigning error.

Tyler & Jenkins, of Aulander, for plaintiff, appellee.

Joseph B. Burden, of Ahoskie, for defendant, appellant.

STACY Chief Justice.

On the hearing, the question in difference was made to turn on the construction of a clause in the will of Abner W. Early, late of Bertie County, this State.

The testator provided that after the death of his wife and the falling in of her life estate, his lands should be divided "into eight equal divisions" and allotted to his children and grandchildren in equal shares, that is, "to my son Hufham or his children one share".

Under the allotment made pursuant to the testator's directions following the death of the life tenant, the plaintiff, who is designated as Hufham in his father's will, was assigned "Tract No. Six (6)", the lot here in controversy. Divisional deeds or cross-conveyances were also executed by the several devisees.

At the time the will was made and at the death of the testator, the plaintiff, Hufham W. Early, had two living children, and he now has four living children.

It is the contention of the plaintiff that he is the owner in fee of "Tract No. Six (6) of the A. W. Early Estate Lands" by virtue of the division made pursuant to his father's will and the divisional or cross-deeds executed by the respective devisees.

The plaintiff's contention prevailed in the court below, and we approve. Tate v. Amos, 197 N.C. 159, 147 S.E 809. The devise is "to my son Hufham", with a substituted gift to "his children" in the event Hufham should predecease the testator. In other words, the substitution is in prospect of, and with a view to guarding against, a failure of the devise by lapse. 1 Jarman on Wills 612; Bender v. Bender, 226 Pa. 607, 75 A. 859, 134 Am.St.Rep. 1088. The devise "to Hufham or his children" means that Hufham will take if he survive the testator, and, if not, his children will take. Ready v. Kearsley, 14 Mich. 215, 225; Hunter v. Watson, 12 Cal. 363, 73 Am.Dec. 543. See Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906.

It is provided by C.S. § 4162 that when real estate is devised to any person, the same shall be held and construed a devise in fee simple, unless such devise shall, in plain and express language show, or it shall be plainly intended by the will or some part thereof, that the testator...