Smith v. Smith

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE
• Citation: Smith v. Smith, 173 N.C. 124, 91 S.E. 721 (N.C. 1917)
• Decision Date: 14 March 1917
• Docket Number: (No. 178.)
• Parties: SMITH v. SMITH et al.

91 S.E. 721

(173 N.C. 124)

SMITH

v.SMITH et al.

(No. 178.)

Supreme Court of North Carolina.

March 14, 1917.

Appeal from Superior Court, Pitt County; Lyon, Judge.

Action to remove a cloud from title by Doremus L. Smith against Susan E. Smith and others. Judgment for plaintiff, and defendants except and appeal. Affirmed.

F. M. Wooteh, of Greenville, for appellants.

Harding & Pierce, of Greenville, for appellee.

HOKE, J. [1] Plaintiff's title to the land, the subject-matter of this litigation, is dependent on the will of his father, Joshua W. Smith, deceased; the devise to plaintiff being in terms as follows:

"I loan to my son, D. L. Smith, two tracts of land (describing same) to have during his life, at his death to his bodily heirs and to his wife her lifetime or widowhood, etc."—and charging the devisee with payment of certain small amounts in money to persons designated.

The plaintiff, contending that he owns the land in fee under the rule in Shelley's Case subject to a life estate in his widow, brings this action against his minor children, alleging that they contend and claim that plaintiff has, under the will, only a life estate in the property, and, by reason of such claim, he is unable to sell or incumber his interests or otherwise enjoy the rights of ownership to which his estate entitles him. Defendants, summoned and duly represented by guardian ad litem, answer, admitting the allegations in the complaint except as to nature and extent of plaintiff's estate, and aver that under the will plaintiff had only an estate for life.

Under our statute (Revisal, § 1589), by which the powers formerly exercised in cases of this character have been much enlarged, the court had undoubted and full jurisdiction to determine the question presented. Little v. Efird, 170 N. C. 187, 86 S. E. 1040; Christman v. Hilliard, 167 N. C. 4-8, 82 S. E. 949; Campbell v. Cronly, 150 N. C. 457, 64 S. E. 213. And we concur in his honor's judgment that the will of Joshua Smith conveys and devises to plaintiff a fee-simple interest in the property, subject to the estate to his wife during her lifetime or widowhood, this, by correct interpretation, being a life estate in her unless sooner terminated by her marriage (Kratz v. Kratz, 189 Ill. 276, 59 N. E. 519), and in remainder after the interest for life first devised to the husband, the plaintiff.

We have held in several of the more recent cases that the words "lend or loan, " in a will, will be taken to pass the property to which it applies in the same manner as "give or devise, " unless it is manifest that the testator otherwise intended. Robeson v. Moore, 168 N. C. 388, 84 S. E. 351, L. R. A. 1915D, 496; Sessoms v. Sessoms, 144 N. C. 121-124, 56 S. E. 687. And, under this instrument, by correct construction, the estate was devised to the son, the plaintiff, for life, remainder to his wife for her lifetime or widowhood, remainder to the bodily heirs of the son. In Nichols v. Gladden, 117 N. C. 497-500, 23 S. E. 459, 460, the rule...