Norwood v. Crowder

• Citation: 99 S.E. 345,177 N.C. 469
• Decision Date: 21 May 1919
• Docket Number: 254.
• Parties: NORWOOD et ux. v. CROWDER et al.
• Court: North Carolina Supreme Court

99 S.E. 345

177 N.C. 469

NORWOOD et ux. v. CROWDER et al.

No. 254.

Supreme Court of North Carolina

May 21, 1919

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

Action by Walter J. Norwood and wife against Ralph H. Crowder and others. Judgment for plaintiffs, and defendant Crowder appeals. Affirmed.

A clause in a will to the effect that land devised to three children should not be sold or disposed of in any way, unless one of the three should desire to sell his part to one or both of the other children, amounted to a total restraint on alienation, and was void as to one who offered to sell his interest to the other two, who refused to either buy or lend him money thereon.

This is an action brought by the plaintiff Walter J. Norwood against the defendant Ralph H. Crowder, and also against the plaintiff's brother, W. H. Norwood, and sister, Rebecca Norwood Bryan, to have declared void a clause in the will of George W. Norwood, deceased, restricting the sale or disposition of a plantation thereby devised and also to compel said Crowder to perform his agreement to lend the plaintiff $1,000, secured by mortgage on plaintiff's share in said plantation.

George W. Norwood died domiciled in Wake county, N. C., on or about March 23, 1915, seized in fee simple and possessed of a plantation in said county of the value of about $20,000, and leaving a last will and codicil thereto which were duly probated and recorded. Said will (dated July 12, 1910) contained the following clause:

"I give unto my sons, Walter J. Norwood, W. H. Norwood, and Geo. W. Norwood, my plantation situate in Neuse River township. None of this plantation is to be sold or disposed of in any way without one of the three sons mentioned above desires to sell his part to one or both of his brothers."

Said codicil (dated January 14, 1914) contained the following clause:

"My son, George W. Norwood, having departed this life on the 16th day of January, 1913, it is my will and desire that my daughter, Rebecca W. Norwood, have the portion of my plantation that I had given in the within will to George W Norwood (said plantation being in Neuse River township Wake county) upon the same terms and conditions."

By said will and codicil said plantation was devised to plaintiff Walter J. Norwood, defendant W. H. Norwood, and defendant Rebecca Norwood Bryan, the last having subsequently married J. Winder Bryan. That plaintiff Walter J. Norwood, following the wording of said will, offered to sell his share of said plantation to his brother, the defendant W. H. Norwood, or to him and his sister, the defendant Rebecca Norwood Bryan, jointly, and asked, if they would not buy, that he or they would lend him $1,000, to be secured by mortgage on said Walter J Norwood's share of said plantation, but his said brother refused to either buy or make the loan, either singly or jointly with his said sister. The plaintiff Walter J. Norwood then made a similar offer and request to his sister, the defendant Rebecca Norwood Bryan, and she also refused to either buy or make the loan either singly or jointly with her said brother, the defendant W. H. Norwood. The plaintiff W. J. Norwood then applied to the defendant Ralph H. Crowder for a loan of $1,000, to be secured by first mortgage on his share in said plantation, and the said Crowder agreed to make said loan, but subsequently discovered that said will contained said clause forbidding the sale or disposition of any part of said plantation by any one of said three children, except to the other, to wit, "None of this plantation is to be sold or disposed of in any way without one of the three sons mentioned above desire to sell his part to one or...