Whitfield v. Garriss

• Court: North Carolina Supreme Court
• Writing for the Court: FURCHES
• Citation: Whitfield v. Garriss, 131 N.C. 148, 42 S.E. 568 (N.C. 1902)
• Decision Date: 14 October 1902
• Parties: WHITFIELD et al. v. GARRISS et al.

42 S.E. 568

131 N.C. 148

WHITFIELD et al.

v.GARRISS et al.

Supreme Court of North Carolina.

Oct. 14, 1902.

WILLS—CONSTRUCTION—ESTATE CONVEYED— CONDITIONAL PEE. 1. Testator bequeathed to his grandson certain described land, and declared that, in the event of the grandson's death leaving no heirs of his body, then the land should descend to the three brothers of the devisee, or the survivors of them, and, in case the last survivor should die leaving no heir or heirs of his body, then the land should be equally divided between all testator's grandchildren. Held, that under Code, § 2180. declaring that when real estate shall be devised to any person the same shall be construed as a devise in fee unless such devise shall show in plain and express words, or it shall be intended by the will, that the testator intended to convey an estate of less dignity, such devise vested a fee-simple estate in the devisee, defeasible only on condition that he died without leaving heirs of his body.

Appeal from superior court, Wayne county; Robinson, Judge.

Action by F. G. Whitfield and others against Ransom Garriss and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. C. Munroe, for appellants.

Allen & Dortch and F. A. Daniels, for appellees.

FURCHES, C. J. This is an action of ejectment, and involves the construction of the will of Lewis Whitfield. The will was written in 1848, and the testator died in 1850, at the advanced age of 90 years. He was a man of large real and personal estate, without living children, but having a number of grandchildren. In item 15 of the will he disposes of the land in controversy as follows: "I give, devise, and bequeath to my grandson Franklin Whitfield (son of L. S. Whitfield, deceased) that part of my land lying on the north of Neuse river, between Walnut creek and Bear creek, in the counties of Wayne and Lenoir [here follows a description of the land conveyed in item 15, said to be about seven square miles of the most valuable land in Wayne county]; and in the event of the death of the said Franklin Whitfield (son of Lewis S. Whitfield, deceased) leaving no heirs of his own body, then, and in that event, the above-described land and other property shall descend to the three sons of Lewis S. Whitfield, deceased, Hazzard Whitfield, Cicero Whitfield, and Lewis Whitfield, or the survivor of them; and, in case the last survivor of the sons of L. S. Whitfield, deceased, shall die leaving no heir or heirs of his own body, the said land or real estate shall be equally divided between all my grandchildren." Franklin Whitfield died in 1900, leaving the plaintiffs his children and heirs of his body. It seems to us, if it was not for the large amount involved in this action, it would not be a very difficult one to dispose of; and this fact should not make it any more difficult than if the amount involved was much smaller. The plaintiffs contend that in construing the will the court should find out, if it can, the testator's purpose in making the will, and that should be carried out by the court; and to do this the court should examine the whole will—all that is written within "its four corners, " as it is sometimes expressed —to find out the testator's intention. And these are some of the rules adopted by courts for construing wills. But the learned counsel who represents the plaintiffs has pointed out no other part of the will that affords us any aid in putting the construction on item 15 they contend it...