Sessoms v. Sessoms

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J. (after stating the case).
• Citation: Sessoms v. Sessoms, 144 N.C. 121, 56 S.E. 687 (N.C. 1907)
• Decision Date: 12 March 1907
• Parties: SESSOMS et al. v. SESSOMS.

56 S.E. 687

144 N.C. 121

SESSOMS et al. v. SESSOMS.

Supreme Court of North Carolina

March 12, 1907

Appeal from Superior Court, Bertie County; Neal, Judge.

Action by J. H. Sessoms and others against Leigh R. Sessoms. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

In a devise to the testator's grandson of a tract of land, and if he should die without lawful heirs of his body, then to the testator's granddaughter, the limitation over to the granddaughter does not limit the estate of the grandson to a life estate where he had heirs of his body, but merely creates a conditional estate in the granddaughter by way of executory devise or shifting use.

Special proceedings for partition of land, transferred on issues raised, to superior court in term and tried before Neal Judge, at December term, 1906, superior court, Bertie county a jury trial having been waived by the parties. Petitioners and defendant, Leigh R. Sessoms, are the children and heirs at law of Joseph W. Sessoms, who died in June, 1906, leaving a last will and testament, in which disposition is made of the land in controversy. The interest of said Joseph W Sessoms in the land was derived under the following clause in the will of his grandfather, William Sessoms: "Item 3. I lend unto by grandson, Joseph W. Sessoms, the Wyman tract of land, whereon his father, H. B. Sessoms, lived and died--the number of acres not known to him--and his lawful heirs of his body, forever, and if he should die without lawful heirs of his body, I then lend it to his sister, my granddaughter Martha Sessoms, and her lawful heirs of her body, forever; and I further lend unto my grandson, Joseph W. Sessoms, and my grand-daughter, Martha Sessoms, the following negroes (to wit): Negro woman Jinny, boy Abram, man Watson, boy Washington, girl Gregory and girl Catherine, to them and their lawful heirs of their bodies, forever; provided, if either of my grandchildren mentioned in this item should die without lawful heirs of his or her body, my wish is the surviving one, as the case may be, shall have the above lands and negroes as above stated, and if both of them should die without lawful heirs of his or her body, my wish and desire is that the above-mentioned lands and negroes be equally divided between my lawful heirs then living, unto them and their heirs, forever." That William Sessoms, the grandfather, died in April, 1844, and his will was duly admitted to probate May term, 1844. That Joseph W. Sessoms died, as stated, in June, 1906, and the Martha mentioned in the will of his grandfather, William, died prior to that time. If, by this clause of the will of his grandfather, Joseph W. Sessoms acquired only a life estate, then partition of the same shall be made as demanded in the complaint; but if Joseph W. Sessoms acquired an absolute estate, then the land must be dealt with as directed by the will of said Joseph. The court below being of opinion that Joseph W. Sessoms, under his grandfather's will, acquired an absolute estate in the land, adjudged that the will of said Joseph shall control the disposition of the land, and the plaintiffs excepted and appealed.

Winston & Matthews, for appellants.

Winborne & Lawrence and Shepherd & Shepherd, for appellee.

HOKE J. (after stating the case).

The clause in question conferred on Joseph W.

Sessoms an estate tail, converted by our statute into a fee simple (Revisal 1905, § 1578); and the court below was correct therefore, in holding that Joseph W. Sessoms acquired an absolute estate under the terms of his grandfather's will. This construction is not affected by the use of the word "lend." This word is not infrequently used in wills as synonymous with give or bequeath or devise. There are instances where, from the context, or exceptional use of the word, it has been allowed a different significance; but the general rule is, that unless it is manifest that the testator did not intend an estate to pass, the word "l...