Ward v. Jones

• Court: North Carolina Supreme Court
• Writing for the Court: PEARSON
• Citation: Ward v. Jones, 40 N.C. 400, 5 Ired. Eq. 400 (N.C. 1848)
• Decision Date: 31 December 1848
• Parties: JOHN WARD et al. v. WILLIAM D. JONES.

5 Ired.Eq. 400

40 N.C. 400

JOHN WARD et al.

v.WILLIAM D. JONES.

Supreme Court of North Carolina.

December Term, 1848.

Where a devise of land, in a will made since the Act of 1784, Rev. Stat. Ch. 122, Sec. 10, and Ch. 93, Sec. 1, is to A. for life and should he have lawful issue then to be equally divided between his lawful issue, but should he not have lawful issue, then over, &c. Held that A. took only a life estate in the land.

The case of Ross v. Toms, 4 Dev. 376, Swain v. Rascoe, 3 Ired. 201, Allen v. Pass, 4 Dev. & Bat. 77, Jones v. Speight, 1 Car. L. Rep 544, Zollicoffer v. Zollicoffer, 4. Dev. & Bat. 438 and Clapp v. Fogleman, 1 Dev. & Bat. Eq. 466, cited and approved.

Cause removed from the Court of Equity of Warren County, at the Fall Term 1848.

The bill is filed for an account of the estate of John L. Ward. The defendant, who is the administrator of the said John L. Ward, with the will annexed, submits to an account. The only question, about which the parties differ, is, whether by the will of Benjamin Ward, the said John L Ward was entitled to an estate in fee simple, or to an estate for life in the tract of land on which he lived.

By one clause of the will of the said Benjamin, he devises and bequeathes as follows: “To my son Benjamin, and, should he marry, to his wife, I lend during his or her life, all my land on the North side of Shocco Creek; also, I lend to him and his wife, should he marry, my negroes, Abraham &c. during both their lives, and when they are both dead to be equally divided between their lawful issue. But if he dies first and without lawful issue, then after his wife's death, the negroes, together with the land, before lent to him and her, to be all sold on twelve months credit on bond with good security, and the money arising from the sale, when paid, I order to be equally divided between his brother John L. Ward, his sisters by his own mother, also allowing one share to be equally divided between all his brother Richard Ward's children, or such of them as may be then alive.”

And by the next clause: “To my son John L. Ward and to his wife, should he marry, I lend for both their lives the tract of land in Warren County, on which he now lives, bounded as follows &c.”“I also lend to my said son John L. Ward and, should he marry, to his wife during both their lives, my two negroes, Phillis, &c; and when he and his wife both die, then the said negroes, and the land, before mentioned to be lent to him and his wife, I hereby order to be sold to the highest bidder on twelve months credit, taking bond and good security, and the money, arising from the sale, to be divided in the same manner, as I have directed in the same case, respecting the division of the money, arising from the sale of my son Benjamin's estate. But this sale and division not to take place, should my said son leave lawful issue. In that case, I would have the same method observed, as I have above directed, in respect to Benjamin's issue.”

The will was made in October 1788. After the death of the testator, John L. Ward married and had several children, who survived him. He died in 1836 leaving a will. The defendant is the administrator with the will annexed, and the plaintiffs are the children of Mary Ward, who was a daughter of the said John L. Ward.

W. H. Haywood, for the plaintiff .

B. F. Moore, for the defendant .

PEARSON, J.

The devise is, in effect, to John L. Ward for life and should he leave lawful issue, then the negroes and land to be equally divided between his lawful issue; but should he not leave lawful issue, then the negroes and land to be sold and divided &c.

The effect of the words “ to be equally divided” in a devise of land, made before the year 1784, to one for life and after his death to be divided between his lawful issue and for want of such issue then over, is very ably discussed by Judge DANIEL in the case of Ross v. Toms, 4 Dev. 376, and the Court decided, that the words do not prevent the application of the rule in Shelly's case, but that the first taker had an estate tail, which by the Act of 1784, is converted into a fee simple.

The will in the case under consideration was made in the year 1788, and unless the acts of 1784. Ch. 204, Rev. Stat. 632, and Ch. 204, Sec. 5, Rev. Stat. 287, alter the law, it is clear, that John L. Ward took an estate tail, which by act of 1784 Ch. 204, Sec. 5, was converted into a fee simple. We think the acts of 1784 do alter the law, and that in all devises of land, made since that time the words “ to be equally divided” prevent the application of the rule in Shelly's case, and that the first taker has but an estate for life.

The act of 1784, Ch. 204, Sec. 12, provides that a devise of land shall be held to be a devise in fee simple, unless such devise shall in plain and express words show, that the testator intended to convey an estate of less dignity.

In the case of Ross v. Toms, which was a devise of land, the reason why the words “ to be equally divided” were not allowed to prevent the application of “““the rule,” and confine the first taker to a life estate, was that the main intent of the testator would be thereby defeated. In the language of Judge DANIEL. “two intents are manifest, one that the daughter should have only a life estate: the other that the remainder over should not take effect, so long as any of her issue remained. The latter must be presumed to be the main intent and paramount purpose of the testator. This main intent cannot be effected by giving the daughter a life estate, and making her children take by purchase, because, there being no words of inheritance added to the estate of the latter, they would take at that time--viz--1777, only a life estate, and after the death of either his or her share would go over. The testator intended, that on the failure of the issue of his daughter, and only on that event, his estate should go over.” To effect the main intent the daughter was held to take an estate tail. If there had been words of inheritance, by which her children could take estates in fee simple, both intents would have been effected, and she would have taken but an estate for life. In the case under consideration, the will was made in 1788, and the act of 1784, above cited, supplies the words of inheritance, so that there is no reason why the particular intent should be made to give way. Both...