Pardue v. Givens

• Decision Date: 30 June 1854
• Citation: 54 N.C. 306,1 Jones 306
• Parties: HENRY PARDUE AND WIFE v. ROBERT GIVENS AND OTHERS.
• Court: North Carolina Supreme Court

1 Jones Eq. 306

54 N.C. 306

HENRY PARDUE AND WIFE

v.ROBERT GIVENS AND OTHERS.

Supreme Court of North Carolina.

June Term, 1854.

After disposing of his personal estate to his wife and ceildren, the divisor proceeds to give to his wife, during her life or widowhood, the dwelling house and several fields, and provides that at her death or marriage, it shall “return to the common stock,” and then comes these words, “I do further will that my children, William Givens, Robert Givens, Margaret Pardue, and the surviving children of my son Samuel Givens, and Jane, the widow of my son John, and her children, James Givens, George A. Givens, and Tabitha Givens, the widow of my son Allen Givens, do settle on, and abide on any part of my lands that is unoccupied, so as not to interfere with the premises of those now residing on the land: and any of the above named children who shall not settle on my land, or those now settled that will not remain on said land, but will remove off and leave the same, then the premises shall revert back and be for the use and benefit of those who may still remain and live on the said premises, and in no case shall any of the aforesaid children, or their lawful representatives have the right to sell, alien or transfer any of my lands, for if any of my heirs will not live and abide on the said land it shall then remain and be for the sole benefit of those of my heirs who may, and will abide, remain and cultivate the same.” Held, that these words conveyed a fee simple to the persons named, and that the children of the deceased sons and daughter, took as a class, and that the words of restraint upon alienation and requiring residence, were void, also, that the widows of the deceased sons are to be included, in the class, with their children.

Samuel Givens died in the year 1846 leaving a will in which were contained the following among other clauses:--“As to my worldly estate I dispose of the same as follows: I will that all my personal estate (except such as is hereinafter disposed of,) consisting of horses, &c., be sold to the highest bidder and the money arising from the said sale after paying debts, &c., to be equally divided between all of my children, to wit, William, Robert, Margaret, Samuel, John, James, George and Allen, share and share alike, so that the children of any of the deceased children above named may take the same share that their parents would take provided the same were alive.” After giving several specific legacies to his wife during life or widowhood, the testator proceeds thus: “I do will and dispose of my lands containing seven hundred and seven acres, comprehending the following tracts, &c., unto my beloved wife, Lucy Givens in the following manner, viz: the dwelling house, the pasture field as is called the barn field, the meadow branch field, and the field including the gin house and old orchard, together with the privilege of cutting timber on any part of my whole plantation for the purpose of keeping in repair the said premises to her allotted, to have and to hold unto her own use and benefit during her natural life or widowhood, and at the death or marriage of the said Lucy Givens, then the said land to return into the common stock, and I do further will that my children, William Givens, Robert Givens, Margaret Pardue and the surviving children of my son Samuel Givens, and Jane, the widow of my son John Givens and her children, James Givens, George A. Givens and Tabithy Givens, the widow of my son Allen Givens do settle on and abide on any part of my lands that is unoccupied so as not to interfere with the premises of those now residing on said land; and any of my above named children who will not settle on my land aforesaid, or those now settled and will not remain on the said land, but will move off and leave the same, then the premises shall revert back and be for the use and benefit of those who may still live and on the said premises, and in no case shall any of the aforesaid children or their lawful representative have the right to sell, alien or transfer any of my aforesaid lands, for if any of my heirs will not live and abide on the said land, it shall then remain and be for the sole benefit of those of my heirs who may and will abide, remain on and cultivate the same.”

The plaintiffs filed their petition in a Court of Equity for Union County, in which they insisted that the devise, contained in the will of the father of the feme plaintiff, as above set forth, was void for uncertainty, and because it tended to create a perpetuity, and that, therefore, the said land descended to the heirs at law of the testator; and they prayed a partition thereof.--To the petition all the heirs at law of the testator, as well as the...