Maynard v. Sears

• Decision Date: 15 November 1911
• Citation: 72 S.E. 609,157 N.C. 1
• Parties: MAYNARD et al. v. SEARS.
• Court: North Carolina Supreme Court

72 S.E. 609

157 N.C. 1

MAYNARD et al.

v.SEARS.

Supreme Court of North Carolina.

Nov. 15, 1911.

1. Wills (§ 602^*) — Estate Conveyed —Defeasible Fee.

A will, after making specific dispositions of certain slaves to J., C. and S., gave the balance of testator's land and negroes to be equally divided between J., C, and S., and provided that, if they all died without such heirs, the property should return to testator's brother and sister or their lawful heirs. Held, that J., C, and S. took a defeasible fee in the land devised.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1351-1359; Dec. Dig. § 602.*]

2. Remainders (§ 17*)—Limitations.

The statute of limitations does not run against remaindermen in favor of a grantee of the life tenant until the life estate falls in.

[Ed. Note.—For other cases, see Remainders, Cent. Dig. §§ 12-17; Dec. Dig. § 17;* Limitation of Actions, Cent. Dig. § 231.]

3 Appeal and Error (§ 927*) — Nonsuit Evidence.

On appeal from a nonsuit, the evidence must be considered in the light most favorable to plaintiff.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. §§ 3748-3757; Dec. Dig. § 927.*]

4. Ejectment (§ 95*)—Action—Sufficiency of Evidence.

Evidence in an action to recover land in which plaintiff claimed as heir at law to B.'s brother held to sustain a finding that B. had owned the land.

[Ed. Note.—For other cases, see Ejectment, Cent Dig. §§ 280-295; Dec. Dig. § 95.*]

5. Trial (§ 140*) —Weight of Evidence — Question for Jury.

The weight of the testimony of a witness as to occurrences 60 or 70 years ago was for the jury, and not for the court, though the witness was only five or six years of age at the time of the matters as to which he testified.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.*]

Appeal from Superior Court, Wake County; Whedbee, Judge.

Action by James Maynard and others against A. S. Sears. From a judgment for defendant, plaintiffs appeals. Reversed.

Aycock & Winston and Peele & Maynard, for appellants.

R. N. Simms, for appellee.

CLARK, C. J. This is an action to recover 100 acres of land. Berry Surls died in 1842, having executed his will as follows:

"In the name of God, Amen. I, Berry Surls, of county of Wake, being of sound and perfect mind and memory, blessed be God, do this 10th day of February, one thousand eight hundred and forty two, make and publish this my last will and testament in manner following: That is to say, first I give and bequeath to John Pollard one negro girl by the name of Jane, to him and his lawful heirs, begotten of his body, dying without such to return to Caswell Pollard and Thomas Slaughter, or their lawful heirs, begotten of their body. Item the second: I give Caswell Pollard one negro girl by the name of Hannah, to him and his lawful heirs begotten of his body, dying without such to return as above directed. Thirdly, I give to Thomas Slaughter one negro girl by the name of Pat, to him and his lawful heirs begotten of his body, dying without such to return to John and Caswell Pollard, or their lawful heirs begotten of their body, and the balance of my land and negroes to be equally divided between John Pollard, Caswell Pollard and Thomas Slaughter, after paying all my just debts, with the exception of Buck. It is my desire that he be sold to a speculator and it is my desire that all my stock of all kinds be sold and equally divided between them as above stated. Also my money and notes to be divided * * * in the manner above stated equally between my three sons which are named in this will. It is my desire that if they all should die without such heirs to return to my brother and sister, or their lawful heirs. I also appoint and ordain my worthy friend, Henry Williams, my executor to this my last will and testament. In testimony whereof I have hereunto set my hand and affixed my seal, in the presence of Dempsey Sorrell and John Brown, this 10th day of February, 1842. _hls

"Berry (X) Surls." mark

The plaintiffs claim that they are the heirs at law of John Surls, who was a brother of Berry Surls, and offered evidence thereof. Berry Surls left no legitimate children. Soon after he died, his three devisees, John and Caswell Pollard and Thomas Slaughter, took possession of the land sued for, and cultivated the same, which they undertook to convey on October 4, 1851, to Bartlett Sears, who took possession of the land, and held it till his death. It was sold February, 10, 1873, to pay the debts of Bartlett Sears. It was purchased by W. H. Crabtree, who took possession. The deed to him recites that the land is the same as that sold by John Pollard, Caswell Pollard, and Thomas Slaughter to Bartlett Sears by aforesaid deed October 4, 1851. On November 20, 1878, Crabtree sold the land, together with adjoining land, making a tract of 282 acres to S. R. Home, who remained in possession till April 24, 1897, when he conveyed the land to the defendant, Sears. The last one of the three devisees named in the will of Berry Surls, to wit, Caswell Pollard, died in February, 1908. This action was brought the following year.

The plaintiffs correctly contend that, under the will of Berry Surls, John and Caswell Pollard and Thomas Slaughter took a defeasible fee in said 100 acres, and that their deed to Bartlett Sears conveyed only such estate, and that the successive mesne conveyances down to the defendant, Sears, conveyed no more than such defeasible fee in the land. The statute...