Rees v. Williams

• Decision Date: 10 December 1913
• Citation: 80 S.E. 247,164 N.C. 128
• Parties: REES ET AL. v. WILLIAMS.
• Court: North Carolina Supreme Court

80 S.E. 247

164 N.C. 128

REES ET AL. v. WILLIAMS.

Supreme Court of North Carolina

December 10, 1913

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

Controversy without action between A. S. Rees and others against Mrs Charlotte Grimes Williams. Judgment for plaintiffs, and defendant appeals. Reversed.

This is a controversy without action, submitted upon the following facts:

1. Several years ago, Mrs. Jennie L. Lee, mother of the female plaintiffs and of Harry Lee, the other plaintiff, died leaving a last will and testament, which reads as follows, to wit: "Wilmette, Illinois, June 30, 1905. Know all men by these presents, I, Jennie Lind Lee, a citizen of the United States of America, residing at present in Wilmette, Illinois do declare this to be my last will and testament. First. I hereby revoke and annul all wills and codicils by me heretofore made. My house and lot situated on corner of East and Jones streets in Raleigh, N. C., I leave to my daughter Jennie Lee, also $1,000 worth of stock at present invested in the Gibson Manufacturing Company of Concord, N.C. In case my daughter, Jennie Lee, shall die leaving issue surviving her then to such issue and their heirs forever; but if my said daughter Jennie Lee shall die without issue surviving her then I desire said property to return to my eldest daughter May Lee Schlesinger, and to my son, Harry Lee, to be equally divided between them, or to their heirs, share and share alike. I bequeath my stock in the Commercial and Farmers' Bank in Raleigh, N. C., to be equally divided between my daughter May Lee Schlesinger and my son Harry Lee. I also bequeath the sum of $25, and this sum to be taken from the interest of said properties and to be paid over by my executor as he thinks best to a colored man called John, who waited on my husband during his last illness. I appoint Mr. Henry E. Litchford as my executor of this will, and with the power to change the investments if he thinks best for the interest of my children; also appoint Mr. Henry E. Litchford guardian of my daughter Jennie Lee. My son Harry Lee is not to have control of his stock, only to spend the interest on it, until he is thirty-five years old, and then said stock is to be turned over to him, if he so desires it. [ Signed] Jennie L. Lee. [ Seal.] Witnesses: [Signed] Sigmund L. Strauss, Chicago, Ill. [ Signed] Howard H. Hitchcock, Wilmette, Ill." This will was duly admitted to probate and of record in Wake county, April 13, 1906.

2. The plaintiff Jennie Lee Rees, who has intermarried with A. S. Rees, is one of the devisees mentioned in said will, and said Harry Lee, also called Joseph Harry Lee, and May Lee Schlesinger, are the other devisees mentioned in said will.

3. The said Jennie Lee Rees and A. S. Rees have no issue now and never have had any. B. F. Schlesinger is the husband of May Lee Schlesinger, and Harry Lee is married, but he and his wife have separated and have lived separate and apart for some years.

4. The $25 bequeathed to John has been paid, and the stock in the Commercial and Farmers' Bank of Raleigh has been sold and the proceeds divided under said will between Harry Lee and May Lee Schlesinger, said proceeds amounting to several thousand dollars.

5. The plaintiffs have agreed to sell the house and lot mentioned in said will on the corner of East and Jones streets in Raleigh, N. C., to the defendant Mrs. Williams, for $7,500, which is a fair and adequate price for said lot; but the said defendant refuses to take the said property at said price, because she fears that a deed executed to her and her heirs in due form by all the plaintiffs is not sufficient to give her a fee-simple title. The said purchaser has been advised that there is doubt as to whether the said plaintiff, Jennie Lee Rees, has a fee simple, and whether she together with Harry Lee and May Schlesinger and her husband can convey a fee simple, and therefore defendant refuses to take said deed.

6. The plaintiffs have executed a deed to the said lot to the defendant, it being in due form and in fee simple, with the usual covenants of warranty, and it has been deposited with...