Helms v. Collins

• Citation: 156 S.E. 152,200 N.C. 89
• Decision Date: 19 December 1930
• Docket Number: 443.
• Parties: HELMS et at. v. COLLINS.
• Court: United States State Supreme Court of North Carolina

156 S.E. 152

200 N.C. 89

HELMS et at. v. COLLINS.

No. 443.

Supreme Court of North Carolina

December 19, 1930

Appeal from Superior Court, Union County; McElroy, Judge.

Action by Etta Helms and husband against E. A. Collins. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Devise for life with power of disposition does not give life tenant fee-simple.

One given estate for life with power of disposition does not have fee.

On November 15, 1929, the plaintiffs and the defendant entered into a written contract for sale by the plaintiffs, and purchase by the defendant, of three tracts of land at the agreed price of $3,400. The plaintiffs tendered, and the defendant declined to accept, a deed for the land, on the ground that the feme plaintiff owns a life estate and not a fee simple.

The parties agreed on the facts, and the trial court adjudged that Etta Helms is the owner in fee, and that the defendant should accept the deed at the price agreed.

Gilliam Craig, of Monroe, for appellant.

W. B. Love and W. H. Rooker, both of Monroe, for appellees.

PER CURIAM.

J. W. Clontz made a will containing the following item: "I give, devise and bequeath unto my wife, E. Jane Clontz, all of my real and personal property of every description and wheresoever located so long as she may live, and should she need the proceeds of the same to live on I give her the right to sell a part or all of the same, but that part not sold or used by her during her lifetime I give and devise unto my daughter Louetta Helms for and during her life and at her death to the heirs of her body."

Jane Clontz did not sell any part of the land devised to her for life. The naked gift of a power of disposition did not convert her life estate into a fee. Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626. The remainder "to my daughter Louetta Helms for and during her life and at her death to the heirs of her body" vests in Louetta Helms an estate in fee under the rule in Shelley's Case. Chamblee v. Broughton, 120 N.C. 171, 27 S.E. 111; Merchants Nat. Bank v. Dortch, 186 N.C. 510, 120 S.E. 60.

Judgment affirmed.