Patrick v. Morehead

• Decision Date: 31 October 1881
• Citation: 39 Am.Rep. 684,85 N.C. 62
• Court: North Carolina Supreme Court
• Parties: HENRY W. PATRICK and others v. J. T. MOREHEAD and others.

39 Am.Rep. 684

85 N.C. 62

HENRY W. PATRICK and others

v.J. T. MOREHEAD and others.

Supreme Court of North Carolina.

October Term, 1881.

CONTROVERSY without action under section 325 of the Code, for the construction of a will, heard at Fall Term, 1880, of ROCKINGHAM Superior Court, before Eure, J.

Case agreed.--The facts agreed upon are as follows: James Patrick, Sen., late of Rockingham county, died in the year 1835, having first made and published his last will and testament, bearing date the 28th of March, 1835, which was duly admitted to probate at May term, 1835, of the county court of said county. He died seized and possessed of the land in dispute.

In the third clause of his will he devised as follows: “I give unto my grandson, James Dillon Patrick, the plantation known as the old ‘Iron Works,’ containing about eight hundred acres of land, to hold during his life time, and if it shall so happen that he has any lawful heirs, I give it to them, or any of them that he may think proper; and should it so happen that he dies without any lawful issue, for the land to be equally divided among all my male grandchildren. I likewise give him my three negroes, York, Jane and Bob, together with all the plantation tools, one set of smith-tools and carpenter-tools, and I give my executors privilege to sell all the stock at the old Iron works, either publicly or privately, discretionary with themselves, and the money thence arising I give to my grandson, James D. Patrick.”

At the time of the testator's death, James D. Patrick was an infant about fourteen years of age and unmarried. He died about the first of May, 1879. About the year 1849 or 1850, several creditors recovered judgments against him amounting to some $579, upon which executions issued and were levied upon the land in controversy, and the interest of the said James D. in the same was sold by the sheriff and bought by James T. Morehead, Sen., deceased and John A. Gilmer, (deceased) and Gilmer conveyed his interest in the land to Morehead, Sen.

The plaintiffs are the children and only heirs at law of the said James D. Patrick, and the defendants are the only heirs at law of James T. Morehead, Sen.

At the date of testator's will, his son James Patrick and his daughter Mary Foulkes, each had children then living. The land on the first of May, 1879, was assessed at $5,000, which is a reasonable valuation, and the net yearly value since that time is $111.??33.

Upon this state of facts it was agreed, if the court shall be of opinion with the plaintiffs, then they are to have judgment for the recovery of the land and for $____ damages, for rents and profits thereof and for costs, but if the court shall be of opinion with the defendants, they are to have judgment.

The court thereupon adjudged, first, that the plaintiffs have not the title to the land described in the case agreed; and secondly, that defendants have the fee simple title to the same; and from this judgment the plaintiffs appealed.

Mr. E. S. Martin, for plaintiffs .

No counsel for defendants.

ASHE, J.

This case comes up by appeal from a judgment rendered in the court below on a statement of facts agreed upon by counsel in a controversy submitted without action. The statement contains the following clause in the last will and testament of James Patrick, Sen., namely: “I give to my gandson James D. Patrick, the plantation known as the old ‘Iron Works,’ containing about eight hundred acres of land, to hold during his life time, and if it shall so happen that he has any lawful heirs, I give it to them or any of them that he may think proper; and should it so happen that he dies without any lawful issue, for the land to be equally divided between all my male grandchildren.”

The plaintiffs claim that James D. Patrick, their father, under the third clause of his grandfather's will took a life estate in the land, and they, the remainder in fee simple after his death; and that the sheriff's deed to Morehead and Gilmer conveyed only the interest of James D. Patrick, which terminated at his death on the first of May, 1879. The defendants on the other hand resist this construction of the will, and claim that James D. Patrick by the devise to him acquired an absolute estate in the land, and that they as heirs of James T. Morehead, deceased, have the fee simple title. And we are now called upon to determine the true construction of the above recited clause in the will of James Patrick, Sen., and to decide whether James D. Patrick took thereby an estate in fee simple or only an estate for life with remainder to his children or descendants.

It is the well settled rule in the judicial construction of wills, that the intention of the testator shall prevail unless it contravenes some established principle of law. It is therefore our duty to ascertain what the intention of the testator was, and to effectuate that intention if warranted by law in so doing.

There perhaps is no branch of the law that has given rise to more conflicting decisions, or a greater display of legal learning, than the application of the rule in Shelley's case to the construction of deeds and wills. But fortunately in this case we are not compelled to grope our way through the mist with which the subject has been enveloped by the many clashing decisions, to reach what we conceive to be the correct interpretation of the will under consideration. A few decisions of our own court with some others lead, we think, to a satisfactory solution of the question.

It has been settled upon unquestionable authority, that if an estate be given by will to a person generally with a power of disposition or appointment, it carries the fee; but if it be given to one for life only and there is annexed to it such a power, it does not enlarge his estate, but gives him only an...