Hampton v. Wheeler

• Decision Date: 16 April 1888
• Citation: 6 S.E. 236,99 N.C. 222
• Parties: HAMPTON et al. v. WHEELER.
• Court: North Carolina Supreme Court

6 S.E. 236

99 N.C. 222

HAMPTON et al. v. WHEELER.

Supreme Court of North Carolina

April 16, 1888

Appeal from superior court, Forsyth county; MONTGOMERY, Judge.

Action to recover possession of real estate, brought by Gideon Hampton and others against W. H. Wheeler. Judgment for defendant, and plaintiffs appeal.

Under a will devising land "to be the property of H. and his wife and their children," H., his wife, and their children living at the death of the testator take as tenants in common.

Glenn & Glenn, for appellants.

Watson & Buxton, for appellee.

MERRIMON J.

It appears that Christian Reich died prior to 1864, leaving a last will and testament which was duly proven. The following is a copy of so much of this will as it is necessary to set forth here: "First. I give and bequeath to my beloved wife, Isabella Reich, my home plantation, containing 50 acres, together with all improvements thereon, during her life-time. Second. After the death of my beloved wife, I will that one-half of the home plantation and all improvements be the property of my beloved daughter, Nancy Reich, and the other half of my home plantation and all improvements to be the property of Alfred Hampton and his wife, Jureda Reich and their children." Isabella Reich, the surviving widow, died in the year 1864. Alfred Hampton and his wife Jureda, died, the former in 1878, and the wife in 1885. In their life-time, on the 7th day of May, 1866, they executed a deed purporting to convey the land mentioned in the clause of the will above set forth to William Reed. He thereupon took possession of the land, and occupied the same about three years, and then sold and purported to convey the same to C S. Banner, who afterwards, in 1869, died intestate; and afterwards, in 1870, his administrator sold the same in fee to the defendant, who has been in possession, holding adversely, since that time. The plaintiffs are the children of the said Alfred Hampton and his said wife, and they were all in being at the death of the testator; and the youngest of them attained his majority more than three years next before the commencement of this action. They bring the action to recover possession of the land, and contend that by a proper construction of the will the plaintiffs took a fee-simple estate in the lands, subject to the life-estate of Isabella Reich, and Alfred Hampton and wife. Defendant contends: First, that Alfred Hampton and wife had a right to claim by their deed a fee-simple estate, and defendant acquired a good title to the same; second, that if not a perfect title vested in Alfred Hampton and wife, they at least took an estate in common with the plaintiffs; third, that defendant's title, if not perfect, has ripened into a good title by long adverse possession under color of title. The court was of "opinion on the case agreed that the plaintiffs are not the owners, nor entitled to the possession of the premises described in the complaint; their interest therein having been barred by the statute of limitations, and that by reason of his deed in fee, the defendant is the owner and entitled to the possession of said lands." The plaintiffs excepted. There was judgment against them, from which they appealed to this court.

The clauses above recited of the will mentioned are not affected as to their meaning, by any other clause of it, or by anything appearing in it, in terms or by implication; they are to be construed as they appear. The mere fact that the quantity of land devised was small,--but 50 acres,--that the testator devised to one of his daughters one-half of it, to the other, her husband, and their children the other half, subject to the life-estate of his widow, cannot reasonably be allowed to so affect and change the plain meaning of the words employed as to make them imply that the testator intended to devise one-half...