Roane v. Robinson

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Roane v. Robinson, 189 N.C. 628, 127 S.E. 626 (N.C. 1925)
• Decision Date: 06 May 1925
• Docket Number: 466.
• Parties: ROANE v. ROBINSON ET AL.

127 S.E. 626

189 N.C. 628

ROANE v. ROBINSON ET AL.

No. 466.

Supreme Court of North Carolina

May 6, 1925

Appeal from Superior Court, Mecklenburg County; Lane, Judge.

Submission of controversy between James K. Roane and W. E. G. Robinson and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Unrestricted devise of realty passes fee.

Where general right to dispose of property is given to taker of first fee, limitation over of second fee is void defendants appealed from a judgment in a controversy without action. Following are the material facts:

(1) Mrs. Virginia M. Roane died a resident of the state of Virginia on the 22d day of June, 1905, leaving a last will and testament which has been duly probated and recorded in the office of the probate court of King William county, Va and the same has also been duly probated and recorded in the office of the clerk of the superior court of Mecklenburg county, N. C.

(2) The will contains these provisions:

"(a) To my niece, Virginia Graham Waring of Memphis, Tenn., I leave all my mother's jewelry save an Aqua Marine set (bracelet, brooch, and necklace) which I give to my nephew Thomas Roane Waring, Jr., of Memphis, Tenn., as my present to his bride when he marries.

(b) To my beloved husband, James Keith Roane, I leave all else I die possessed of, personal and real to be his own, entirely and solely, to use and spend as he chooses, without any restriction. In the event, however, that he does not marry and have issue, I wish what is left of my realty at his death to be divided as I shall hereafter state, only to be so divided in case he does not leave living issue at his death but in the event of issue by any subsequent marriage to be divided as devised in fourth article of this will.

(c) James Keith Roane dying without issue, I desire two hundred dollars be given to each of my nephews Thomas, Earl and James Roane Commins of Rumford, Va. Also the silver marked 'R' being either that belonging to their grandfather, James Roane or else gifts to me from them. The rest of the personalty and realty to go to Thomas Roane Waring, Jr., of Memphis, Tenn.

(d) In event of James Keith Roane, my beloved husband leaving issue by a subsequent marriage, I want all my personalty and realty I die possessed of and not spent by him up to his death to go to his children save only the silver marked 'W,' the silver and Bohemian glass set given me by my father, the silver marked 'R. P. A.' my mother's portrait and portrait of Uncle Thomas Roane, which articles I desire given to my nephew Thomas Roane Waring."

(3) The testatrix was survived by her husband, but she left no children.

(4) At the time of her death she was the owner (besides certain real estate in Virginia) of five lots in the city of Charlotte which are the subject of this controversy.

(5) After her death the plaintiff (surviving husband) married again, is 72 years of age, and has no children born of the second marriage.

(6) The plaintiff has contracted in writing to convey to the defendants in fee simple the five lots described above, and the defendants have contracted to purchase said lots at an agreed price.

(7) The plaintiff is ready and willing to execute his deed for said lots, and the defendants are ready, able, and willing to comply with their contract, but deny that plaintiff can convey a title in fee.

(8) The controversy submitted to the court for its decision is whether said James K. Roane acquired the right and power to convey a fee-simple title to the lands above described under the provisions of the will of Mrs. Virginia M. Roane.

Upon the facts, it was adjudged that the plaintiff is entitled to have specific performance of the contract by the defendants, and that upon tender by the plaintiff of a deed in fee, with the usual covenants, the defendants be required to accept the same and to comply with the contract of purchase. The defendants excepted and appealed.

C. H. Gover and D. W. Spencer, both of Charlotte, for appellants.

Pharr & Bell, of Charlotte, for appellee.

ADAMS J.

The question presented has been before the court so often that nothing more is necessary than a brief review of some of the decisions in which the controlling principle is treated. Whether a devise of land with a power of disposition over it carries the fee or a lesser estate is obviously dependent upon the terms in which it is expressed. The rule is clearly stated in Carroll v. Herring:

"Where real estate is given absolutely to one person, with a gift over to another of such portion as may remain undisposed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given; and it is also established law that where an estate is given to a person generally or indefinitely with a power of disposition, or to him, his heirs and assigns forever, it carries a fee, and any limitation over or qualifying expression of less import is void for repugnancy. The only exception to such a rule is where the testator gives to the first taker an estate for life only, by certain and express terms, and annexes to it the power of disposition. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the naked gift of a power of disposition." 180 N.C. 369, 104 S.E. 892.

By statutory provision a devise of real estate shall be construed to be a devise in fee simple, unless it appear in express words or by plain intent that the testator's purpose was to convey an estate of less dignity. C. S. § 4162. An unrestricted devise of real property therefore passes the fee. If a fee be limited after a fee by way of executory devise, the taker of the first fee cannot as a general rule bar the taker of the second fee by the execution of a deed of bargain and sale with warranty. Myers v. Craig, 44 N.C. 169, overruling Spruill v. Leary, 35 N.C. 225, 408, and distinguishing Flynn v. Williams, 23 N.C. 509. But this principle does not apply here, for it will be noticed that Mrs. Roane's "wish" as to the disposition of certain property after the death of her husband relates to such real property as may be left by him undisposed of--in her words, "what is left of my realty at his death to be divided as I shall hereafter state." Moreover, where a fee is limited upon a fee by way of executory devise, if a general right to dispose of the property is given to the taker of the first fee, such right is inconsistent with the second fee, and the consequence is that the limitation over of the second fee is inoperative and void. Newland v. Newland, 46 N.C. 463; Hall v. Robinson, 56 N.C. 348. In McDaniel v. McDaniel, 58 N.C. 351, Chief Justice Pearson employed this language:

"If one devises in fee simple, he cannot

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