Jones v. Jones, 594.

• Citation: 42 S.E.2d 620,227 N.C. 424
• Decision Date: 21 May 1947
• Docket Number: No. 594.,594.
• Parties: JONES et al. v. JONES et al.
• Court: United States State Supreme Court of North Carolina

227 N.C. 424
42 S.E.2d 620

JONES et al.
v.
JONES et al.

No. 594.

Supreme Court of North Carolina.

May 21, 1947.

Appeal from Superior Court, Scotland County; W. G. Pittman, Judge.

[42 S.E.2d 621]

Special proceeding by Maggie Jones and others against C. L. Jones and others for sale of four tracts of land for partition among petitioners as tenants in common. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Special proceeding for sale of four certain tracts of land for partition among petitioners as tenants in common and owners in fee thereof, to which respondents are made parties so that the court may determine and adjudicate their claim and interest therein if any--and in which all respondents, other than C. L. Jones and wife, and Fannie Jones Livingston and husband, by answer filed, deny title of petitioners, and specifically plead that the fourth tract is the property of the collateral heirs of Margaret Jones, the wife of John Wesley Jones, and that petitioners have no right, title or interest therein, and assert claim of interest in said lands based upon provisions of Item Four and Item Seven of the last will and testament of John Wesley Jones, deceased, a copy of which is attached to and made a part of their answer for purpose of incorporating same therein.

Counsel, representing the petitioners and the answering respondents, agreed upon facts to be submitted to the court, upon the hearing, as follows: "Two Hundred five acres of the lands, title to which is involved in this action, were devised to John Wesley Jones, by his father, Duncan Jones. The remaining part of the lands involved were acquired by John Wesley Jones from other sources, and constituted, with the 10 acres devised to Turner McKenzie, all of his estate, except a small amount of personal property. Thereafter, John Wesley Jones died domiciled in Scotland County, leaving a last will and testament duly filed and probated in the office of the Clerk of the Superior Court of Scotland County, a copy of which is hereto attached, marked Exhibit A, and made a part of these agreed facts." Pertinent parts of the will are as follows:

"Item Two. I give to my wife should she survive me, fifty acres to be laid off so as to include my residence and to best advantage to same and rest of farm.

"Item Three. I desire that my wife's sister, Sallie Jones, shall have a home and support along with my wife so long as Sallie shall remain single and desire to live on the said fifty acres of land devised to my wife.

"Item Four. The residue of my land I dispose of as follows: To John Earle McKenzie and Turner Kenneth McKenzie, sons of Turner McKenzie, (Sr.), I give ten acres of land to be laid off on the public road next to the McEachin land and extending back west to ditch so as to include ten acres for the use of said children. The rest of my land I give to my sons John North Jones, Angus D. Jones and Luther Thomas Jones to have the use of same for their care, the maintenance and support of themselves and their families should they or any of them marry hereafter, this use to last throught natural life of my said sons provided that if any one or more of said sons shall pledge their right and interest in said lands by mortgage or other written obligation or submit to any judgment that would otherwise take title or encumber their title to said lands during each his life, his estate shall thereby terminate and shall go over to the children of such son so forfeiting, if he have lawful issue then living, and if he have no lawful issue, then it shall go over to the surviving...