Perrett v. Bird

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE
• Citation: Perrett v. Bird, 152 N.C. 220, 67 S.E. 507 (N.C. 1910)
• Decision Date: 23 March 1910
• Parties: PERRETT v. BIRD.

67 S.E. 507

152 n.c. 220

PERRETT

v.BIRD.

Supreme Court of North Carolina.

March 23, 1910.

1. Wills (§ 607^*) — Construction — Estates Created—Fee Simple.

A devise to testator's son and the lawful heirs of his body lawfully begotten would create a fee-simple estate under Revisal 1905, § 1578, converting an estate entail into a fee simple.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1368; Dec. Dig. § 607.*]

2. Wills (§ 602*) — Construction — Estates Created—Base Fee.

A will gave certain land to testator's son D. and the lawful heirs of his body lawfully begotten. Other lands were given to another son and daughter, and the will provided that, in case of the death of any of the three children, their shares should go to the surviving one, and, in case they all should die without heirs of their bodies lawfully begotten, it should go to others. Held, that the clause "and in case they all die without heirs of their bodies lawfully begotten" controls the former clause, relating to the death of the children, giving D. a base and qualified fee, defeasible on his death without lineal descendants living.

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

3. Wills (§ 602*)—Base Fee—Time of Becoming Absolute.

The event by which the interest of a devisee of an interest to pass to another upon the devisee's death without lawful issue is determined is not the death of testator, but the death of the devisee.

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

Appeal from Superior Court, Sampson County; Cooke, Judge.

Controversy submitted without action between Thomas Perrett and L. A. Bird. Judgment for plaintiff, and defendant appeals. Reversed.

Faison & Wright, for appellant

Stevens, Beasley & Weeks, for appellee.

HOKE, J. "Plaintiff, having acquired and holding the estate and interest of David Oates, Jr., in a tract of land, bargained the same to defendant, L. A. Bird, at the contract price of?1, 500, and agreed to convey a good title." Defendant having refused to pay on the ground that the title held and offered by the plaintiff was not a good one, the present controversy was submitted, pursuant to law, for the purpose of determining the question. The title offered by plaintiff was alleged and shown to depend upon the proper construction of the will of David Oates, father of David Oates, Jr., bearing date 1873, and in which David Oates, the father, devised certain lands to three of his children, Susan, David, Jr., and Jethro; and the portion devised to David, Jr., and which includes the land in controversy, was in terms and in part as follows: "Item 3rd. I give and devise unto my beloved son, David Oates, and the lawful heirs of his body lawfully begotten, the other portion of the land I have given to his mother for life on the west side of the division line running north and south, containing the same number of acres as his brother Jethro W. Oates, five hundred acres, more or less, as it may run out." And having, as stated, devised certain other lands to his daughter Susan and to another son, Jethro, the will further provides: "Item 9th. It is my desire that in case of the death of either of my three children, Susan, David and Jethro, that their portion of my estate shall revert to the surviving one, and case they all die without heirs of their bodies lawfully begotten, then it shall go to my oldest children."

Under our statute (Revisal, § 1578) and numerous decisions thereon the estate conveyed under the third item of the will of David Oates, if that item alone applied to the question, would undoubtedly have been a fee simple (Sessoms v. Sessoms, 144 N. C. 121, 56 S. E. 687; Jones v. Ragsdale, 141 N. C. 200, 53 S. E. 842; Wool v. Fleetwood, 136 N. C. 460, 48 S. E. 785, 67 L. R. A. 444), but this item is to be construed in connection with the provisions of item 9 of the will. A perusal of this item 9 gives clear indication that the last clause, "and in case they all die without heirs of their bodies lawfully begotten, " should also be annexed to and control the first clause of this item; this being the clear intent of the devise, and making the entire item read: "That in case of the death of either of my three children, Susan, David and Jethro, without heirs of their bodies lawfully begotten, their portion of the estate should revert to the survivors, and in case they all die without heirs of their bodies, " etc., "then over." And in our opinion, this being the correct interpretation of item 9, a proper construction of the two items taken together requires that the interest conveyed to David Oates, Jr., by the will of his father, be declared a base and qualified fee, because defeasible on the death of David Oates, Jr., without lineal descendants living at the time of his death. Dawson v. Ennett, 151 N. C. 543, 66 S....