Kornegay v. Cunningham

• Court: North Carolina Supreme Court
• Writing for the Court: ALLEN, J.
• Citation: Kornegay v. Cunningham, 93 S. E. 754, 174 N. C. 209 (N.C. 1917)
• Decision Date: 03 October 1917
• Docket Number: 184.
• Parties: KORNEGAY v. CUNNINGHAM ET AL.

93 S.E. 754

174 N.C. 209

KORNEGAY v. CUNNINGHAM ET AL.

No. 184.

Supreme Court of North Carolina

October 3, 1917

Appeal from Superior Court, Greene County; Stacy, Judge.

Proceedings by J. H. Kornegay against Robert Cunningham and others. From the decree entered, defendants appeal. Modified and affirmed.

Under will giving land to daughters and lawful heirs of body of each in fee simple, "and if she shall die without lawful heir of her body," to other surviving heir, held, that daughters took fee-simple estate subject to be defeated by death without leaving child.

This is a proceeding instituted by the administrator of Harriett Susan Hill against her heirs and the heirs of Hymbric Hill to sell land for assets to pay the debts of said Harriett Susan Hill. The land in controversy formerly belonged to Hymbric Hill, who died leaving surviving him three children, Harriett Susan Hill, Huldah Ann Hill, and Sarah John Hill, as his only heirs at law. He left a will in which he devised the land to Harriett Susan Hill in item 2, another tract of land to Huldah Ann Hill in item 3, and another tract of land to Sarah John Hill in item 4. The limitations as to all of these devises to the daughters are substantially alike, and one is quoted as illustrative of all:

"Item 2. I give and devise to my beloved daughter, Harriett Susan, fifty-two acres of land bounded as follows [description omitted as it is not material]. To have and to hold to her and the lawful heirs of her body in fee simple forever, and if she should die without a lawful heir of her body, then said property is to go to the other surviving heirs."

Sarah John Hill died before her sisters, Huldah Ann and Harriett Susan Hill, without ever having had a child. Huldah Ann Hill died before her sister Harriett Susan Hill, without ever having had a child. Harriett Susan Hill, the last surviving daughter, died in May, 1915, without ever having had a child.

His honor held that Harriett Susan Hill died seised in fee of all of the lands described in items 2, 3, and 4 of said will, and entered judgment accordingly, and the defendants appealed.

Loftin Dawson & Manning, G. V. Cowper, and R. A. Whitaker, Jr., all of Kinston, for appellants.

J. Paul Frizzelle, of Snow Hill, for appellee.

ALLEN J.

The language in the devise "and if she should die without a lawful heir of her body," in the connection in which it is used, means children, under many decisions of this court. Smith v. Lumber Co., 155 N.C. 389, 71 S.E. 445 Bizzell v. Loan Ass'n, 172 N.C. 159, 90 S.E. 142, and Albright v. Albright, 172 N.C. 352, 90 S.E. 303, and the cases cited in these opinions.

It is also equally well settled that under the provisions of the will the daughters took a fee-simple estate subject to be defeated upon dying without leaving a child. Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904; Ford v. McBrayer, 171 N.C. 422, 88 S.E. 736.

If so under the plain language of the will, upon the death of Sarah John leaving no child surviving her, the tract of land devised in item 4 passed in fee simple to the two surviving daughters, Huldah Ann and Harriett Susan, who were the...