Jolley v. Humphries

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, Chief Justice
• Citation: Jolley v. Humphries, 204 N.C. 672, 169 S.E. 417 (N.C. 1933)
• Decision Date: 24 May 1933
• Docket Number: No. 525.,525.
• Parties: JOLLEY et al. v. HUMPHRIES et al.

204 N. C. 672

169 S.E. 417

JOLLEY et al.

v.HUMPHRIES et al.

No. 525.

Supreme Court of North Carolina.

May 24, 1933.

Appeal from Superior Court, Cleveland County; Finley, Judge.

Action by Nellie Settlemyer Jolley and others against J. T. Humphries and others. From an adverse judgment, plaintiffs appeal.

Affirmed.

Civil action in ejectment determined upon the construction of the following provisions in the will of S. R. Humphries, who died in 1909: "2nd. I give and bequeath to my wife, Mary A. Humphries, the following described real estate, towit: (Description by metes and bounds of homestead consisting of 208 acres.) I also bequeath to my beloved wife my entire one-half interest in the following described tract of land owned by my brother, P. W. Humphries, and myself, towit: (Description by metes and bounds of tract consisting of 163⁵/₈ acres). Also I bequeath to my wife my entire half interest (description by metes and bounds of tract consisting of 619¹/₂ acres). To have and to hold the afore described real estate during the term of her natural life and at her death to go to Nellie G. Settlemyer of Catawba Co. N. C. 2nd. I bequeath to Nellie G. Settlemyer now with her mother in Catawba Co. North Carolina, Tract No. 3 the above described lands, and she is to have possession of said lands upon the death of my wife, Mary A. Humphries, and not before."

On August 21, 1912, Mary A. Humphries, wife of the testator, sold the lands here in dispute, the first and second tracts, above described, to V. A. Humphries in fee, reserving a life estate unto herself, and remained in possession thereof until her death in June, 1917.

Nellie' G. Settlemyer was a minor at the death of the testator. She married J. Floyd Jolley in 1915, and reached her majority in 1918 or 1919.

V. A. Humphries took possession of the two tracts of land here in controversy under the deed of Mary A. Humphries immediately following her death and remained inpossession thereof until his death, which occurred June 21, 1931. His heirs have been in possession of said lands since his death. This action was instituted February 9, 1932.

The defendants deny that plaintiff took any interest in the first and second tracts, above described, under the will of S. R. Humphries, and they also plead the statutes of limitations.

From a judgment holding that plaintiff took no interest in the locus in quo under the will in question, she appeals, assigning error.

D. Z. Newton, of Shelby, Paul Boucher, of Rutherfordton, Jennings L. Thompson, of Spartanburg, S. C, and Quinn, Hamrick & Hamrick, of Rutherfordton, for appellants.

J. C. Whisnant and Ryburn & Hoey, all of Shelby, for appellees.

STACY, Chief Justice.

Does the limitation, "To have and to hold the afore described real estate during the term of her natural life and at her death to go to Nellie G. Settlemyer, " which follows the description of the third devise in item 2 of the will of S. R. Humphries, also apply to the first and second devises? Our answer is, that it does not. This is the interpretation which the parties themselves placed upon the will for more than twenty years.

In the first place, the ordinary signification of the words "afore described real estate" is the next preceding, which in the instant case would mean the third tract of 619¹/₂ acres immediately preceding the limitation. Mclver v. McKinney, 184 N. C. 393, 114 S. E. 399, 401.

Secondly, the first and second devises, standing alone, are unquestionably devises in fee to the testator's wife. She was the primary object of his bounty, and is entitled to be accorded consideration as such. Man-gum v. Trust Co., 195 N. C. 469, 142 S. E. 711. It is provided by C. S. § 4162 that when real estate is devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity. Lineberger v. Phillips, 198 N. C. 661, 153 S. E. 118; Washburn v. Bigger-staff, 195 N. C. 624, 143 S. E. 210; Barbee v. Thompson, 194 N. C. 411, 139 S. E. 838.

Hence, if we give the language of item 2 its...