Haar v. Schloss

• Decision Date: 25 May 1915
• Docket Number: (No. 273.)
• Citation: Haar v. Schloss, 169 N.C. 228, 85 S. E. 380 (N.C. 1915)
• Parties: HAAR et al. v. SCHLOSS.
• Court: North Carolina Supreme Court

85 S.E. 380

169 N.C. 228

HAAR et al.

v.SCHLOSS.

(No. 273.)

Supreme Court of North Carolina.

May 25, 1915.

Appeal from Superior Court, New Hanover County; Allen, Judge.

Action by John Haar, executor of Mary Christ, deceased, and another against Nathan Schloss. From a judgment for defendant, plaintiffs appeal. Affirmed.

See, also, 83 S. E. 306.

This is an action to recover the purchase price of a certain lot of land which formerly belonged to Philip Christ. The defendant refused to pay for the land upon the ground that the plaintiffs could not convey him a good title. The plaintiffs are John Haar, executor of Mary Christ, and Katherine Wegermann, the only heir at law of Philip Christ. Philip Christ died in 1895, leaving a will in which he devised the land in controversy to his wife, Mary Christ, for life, and then provided:

"After the expiration of the life estate just hereinbefore in item second of this my last will and testament, I give, devise and bequeath all of my estate, real and personal, to my heirs at law, and the heirs at law of the said Mary Christ, to be equally divided between them, share and share alike."

Mary Christ died in 1912, leaving a will in which she appointed the plaintiff, Haar, executor, and conferred upon him full pow-er to sell said land and to execute a deed for the same. Thereafter the said Haar, executor, and the said Katherine Wegermann contracted to sell said land to the defendant, and they have tendered him a deed and have demanded payment of the purchase money, and the defendant has refused to accept the deed and to pay the purchase price upon the ground that the plaintiffs cannot convey him a good title. There was a judgment in favor of the defendant, and the plaintiffs excepted and appealed.

Bellamy & Bellamy, of Wilmington, for appellants.

Herbert McClammy, of Wilmington, for appellee.

ALLEN, J. The will of Philip Christ passed only a life estate to the land in controversy to his wife, Mary Christ, unless the superadded words in the third item that, "after the expiration of the life estate I give, devise and bequeath, all my estate, real and personal, to my heirs at law and the heirs of the said Mary Christ, " bring the devise within the operation of the rule in Shelley's Case. There might be some ground for this contention but for the additional words appearing in the item "to be equally divided between them, share and share alike." In Mills v. Thorne, 95 N. C. 364, which is affirmed in Gilmore v. Sellars, 145 N. C. 285...