May v. Lewis

• Decision Date: 10 March 1903
• Citation: 132 N. C. 115,43 S.E. 550
• Court: North Carolina Supreme Court
• Parties: MAY. v. LEWIS.

43 S.E. 550

132 N. C. 115

MAY.

v.LEWIS.

Supreme Court of North Carolina.

March 10, 1903.

WILLS—CONSTRUCTION—ESTATE CONVEYED— EXECUTORY DEVISE.

1. Where a will provides, "I loan unto my son my entire interest in the tract of land * * * to be his during his natural fife, and at his death I give said land to his heirs, if any, to be theirs in fee simple forever; and if he should die without heirs, said land to revert back to his next of kin"—the son takes merely a life estate, and cannot convey an estate in fee.

2. A limitation in a will providing that, if the devisee should die without heirs, the land should "revert back to his next of kin, " is a valid executory devise.

Appeal from superior court, Pitt county; Ferguson, Judge.

Action by Benjamin May against B. M. Lewis. From a judgment for defendant, plaintiff appeals. Affirmed.

Womack & Hayes, F. G. James, and J. H. Pou, for appellant.

CONNOR, J. The plaintiff acquired title to the land in controversy by the sixth item of the will of his mother, Mrs. Mary A. E. May, which is in the following words: "I loan unto my son Benjamin May my entire interest in the tract of land * * * to be his during his natural life, and at his death I give said land to his heirs, if any, to be theirs in fee simple forever; and if he should die without heirs, said land to revert back to his next of kin." On December 1, 1902, the plaintiff entered into a contract with the defendant to sell him said land at the price of $5,500, and has, in accordance with the terms of said contract, prepared and tendered to the defendant a deed, with warranty, for said land, and demanded payment of the purchase money. The defendant refused to accept said deed and pay said money, for that he is advised that the plaintiff has not, and cannot convey to him, a good and indefeasible title in fee in said land. This action is brought to compel specific performance on the part of the defendant. The court being of the opinion that the plaintiff had only a life estate in said land, rendered judgment against the plaintiff, and he appealed.

The correctness of the judgment of his honor is dependent upon the construction of the will under which the plaintiff claims title. If the devisor had concluded the limitation with the words "to be theirs in fee simple forever, " there would be no doubt that, under the well-settled principle known as the "Rule in Shelley's Case, " the plaintiff would have taken an estate in fee simple. This rule is too thoroughly and firmly fixed in our jurisprudence to be brought into question. Star-nes v. Hill, 112 N. C. 1, 16 S. E. 1011, 22 L. R. A. 598; Nichols v. Gladden, 117 N. C. 497, 23 S. E. 459.

The limitation over by which it is provided that, if he should die without heirs, the land should "revert back to his next of kin, " is valid as an executory devise. Smith v. Bris-son, 90 N. C. 284, in which Ashe, J., discusses the doctrine of springing and shifting uses with much learning. It may be suggested that, if the plaintiff died without heirs, he could leave no next of kin, and that therefore the language of the will is equivalentto saying that, if the devisee dies without heirs, the land shall revert back to his heirs, which would be an absurdity. It will be observed, however, that the word "heirs" is to be understood in that sense which is given it by the law, and is essentially different from the term "next of kin." It is our duty, as far as possible, to give to words used by...