Elder v. Johnston

• Court: North Carolina Supreme Court
• Citation: Elder v. Johnston, 227 N.C. 592, 42 S.E.2d 904 (N.C. 1947)
• Decision Date: 05 June 1947
• Docket Number: 748.
• Parties: ELDER v. JOHNSTON.

42 S.E.2d 904

227 N.C. 592

ELDER v. JOHNSTON.

No. 748.

Supreme Court of North Carolina

June 5, 1947

Lora Perry Elder died in the year 1942, seized and possessed of certain land in Alamance County, including the tract described in the complaint. She left a will in which she devised all her property to her two daughters and four sons. The material part thereof is as follows:

"Second I give and devise to my own children, all of my real and personal property, to be equally divided among them and if they cannot agree then all of my real and personal property is to be sold and the proceeds thereof, equally divided among all my children.

"Third: My further will and desire is that in the event of the death of either of my two daughters or four sons before all of their children become of age (of all who have issue) that the real property devised by me to said son or daughter, shall not be sold or disposed of, until the youngest child of the respective sons and daughters becomes of age, unless a like amount of money is invested in real estate of equal value."

Plaintiff and his brothers and sisters made a voluntary partition of the lands devised in said will and plaintiff was allotted as his share the tract described in the complaint. A partition deed therefor was delivered to him. Thereafter he contracted to sell and convey said land in fee simple to defendant for the sum of $14,000 and pursuant thereto tendered to defendant a deed conveying same in fee with full covenants of warranty. Defendant declined to accept said deed and to pay the agreed purchase price for that under the terms of the will of Lora Perry Elder the estate of plaintiff is contingent and so limited that he cannot now convey a fee simple title. Thereupon, plaintiff instituted this action to compel specific performance of said contract.

The cause was submitted to the resident judge in chambers upon the record. Being heard, the court adjudged that the deed tendered by plaintiff conveys a good and sufficient title in fee simple and decreed specific performance. Defendant excepted and appealed.

Long & Long, of Graham, for plaintiff appellee.

C.C Cates, Jr., of Burlington, for defendant appellant.

BARNHILL Justice.

The testatrix, the the second paragraph of her will heretofore quoted, made an unrestricted devise of her land to her six children to be equally divided among them, with the provision that if they could not agree upon a division then the land should be sold and the proceeds divided. Nothing else appearing, this constitutes a devise in fee. G.S. § 31-38; Holt v. Holt, 114 N.C. 241, 18 S.E. 967; Fellows v. Durfey, 163 N.C. 305, 79 S.E. 621; Roane v Robinson, 189 N.C. 628, 127 S.E. 626; Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838; Lineberger v. Phillips, 198 N.C. 661, 153 S.E. 118; Jolley v. Humphries, 204 N.C. 672, 169 S.E. 417; Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817; Barco v. Owens, 212 N.C. 30, 192 S.E. 862; Heefner v. Thornton, 216 N.C. 702, 6 S.E.2d 506; Early v. Tayloe, 219 N.C. 363, 13 S.E.2d 609; Croom v. Cornelius, 219 N.C. 761, 14 S.E.2d 799.

So then the question here is this: Does the provision contained in paragraph three so restrict or limit the estate thus devised that plaintiff cannot now convey a fee simple title to the share allotted to him in the division? The court below answered in the...