Faison v. Odum

• Court: North Carolina Supreme Court
• Writing for the Court: BROWN
• Citation: Faison v. Odum, 144 N.C. 107, 56 S.E. 793 (N.C. 1907)
• Decision Date: 12 March 1907
• Parties: FAISON et al. v. ODUM.

144 N.C. 107

56 S.E. 793

FAISON et al.

v.ODUM.

Supreme Court of North Carolina.

March 12, 1907.

Wills — Construction —Remainders—Bulk in Shelley's Case.

Testator devised and bequeathed to his son M. and his heirs, in trust for the use of his son E. for life, certain described lands, and after the death of E., to his issue forever, and in case of his death without "issue, " testator devised the lands to E.'s surviving brothers and their heirs, and in case of their death before him, and leaving children, to such issue and their heirs. Held, that the word "issue" was used as a correlative term for "children, " and was not sufficient to indicate a purpose to create an estate of inheritance in E., and hence the latter took a life estate in the lands, remainder to his children in fee, and not a fee under the rule in Shelley's Case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1393-1416.]

Appeal from Superior Court, Sampson County; Jones, Judge.

Ejectment by 10. L. Faison and others against S. R. Odum. Plaintiffs claimed title under the will of William Faison, as remaindermen. The trial court held that plaintiffs' father took a fee under such will pursuant to the rule in Shelley's Case, and that plaintiffs took nothing. Plaintiffs thereupon submitted to a nonsuit, and appealed. Reversed.

George E. Butler, for appellants.

John D. Kerr and T. R. Cooper, for appellee.

BROWN, J. The plaintiffs' right to recover depends upon the construction placed upon the eighth item of the will of William Faison, dated May 18, 1855, and which, relieved of unnecessary surplusage, reads as follows: "I give, devide, and bequeath unto my son, Matthew J. Faison and his heirs, in trust for the use and benefit of my son, Edward, during his life, my Chestnutt lands on the West side of the Six Runs, etc., and after the death of my said son, Edward, to his issue forever, and in case of his death without leaving issue, I give devide and bequeath the lands devised In trust to him, unto his surviving brothers and their heirs, and, in case of their death before him and leaving children, to such issue and their heirs." In this will the testator devises an equitable estatefor life to Edward Faison, and an equitable estate in fee "to his issue forever." The limitation over to the surviving brothers would not prevent the application of the rule, had the first devise been to Edward Faison and his heirs or the heirs of his body. There have been cases where it was the manifest intention of the testator that the second taker should take, not from him, but from the first taker, then the words "children, " "issue, " etc., as well as the word "heirs" have been construed in some jurisdictions as words of limitation and the rule of Shelley's Case applied. Brinton v. Martin, 197 Pa. 618, 47 Atl. 841. In the will under...