Edwards v. Edwards , 241 N.C. 694 ( 1955 )

Higgins, J.

The sole question involved in this appeal is the disposition of the real estate made in Item 2 of the will of Charles Best. That George Edwards is the owner of a life estate in an undivided one-fourth of the land, with remainder to his children, is not in dispute. The will plainly so provides and the trial judge was correct in so deciding. The controversy arises with respect to the remaining three-fourths interest. Careful consideration of the will convinces us the trial judge was also correct in holding that George Edwards is the owner in fee of the remaining three-fourths undivided interest. We think this is so for reasons different from those assigned in the judgment of the Superior Court. While George Edwards is the sole heir of the testator, he takes under the will as survivor and not by inheritance.

We gather from the will that it was the intention of the testator to make a complete and final disposition of all his real estate and that Item 2 of his will makes such disposition. The item in question contains one sentence. As related to the question involved, the two important -and controlling clauses are: (1) “That my lands shall be equally divided between all my children and my grandson, George Edwards, to have and to hold to them during their lives and if any one of them shall die without leaving any cbild or children, then to the others who shall survive;” and (2) “at the death of my said children each one’s share shall belong to their children if they leave any and if they leave no children, then to the survivor or survivors of my children and their issue in fee simple.”

The widow’s life estate was outstanding until her death in 1932. Nettie Mirrenda Best died in 1914. Her life estate had not come into possession. She died without children. She was not a survivor. She took nothing under the will. At the death of the widow in 1932, Ambrose Best, Jennie Mirrenda Best and George Edwards came into possession of life estates as tenants in common. In 1939 Ambrose Best died without children. He could not qualify as a survivor. Under the will he took only a life estate which terminated with his death. Thereafter the life estates of Jennie Mirrenda Best and George Edwards continued until 1953 when Jennie Mirrenda Best died without children. She was not a survivor. Her interest terminated with her death. Of the devisees in the will, George Edwards is the lone survivor. When related clauses numbers 1 and 2 above quoted are read together, as they must be in construing the will, it is apparent the testator intended that the grandchild, George Edwards, should stand on an equal footing with the children and that the word “children” last used in clause number 2 was intended to and did include the grandchild, George Edwards. He took in fee three-fourths of the land for the reason that Nettie Martha, Ambrose, and Jennie Mir-renda each died without children, leaving him the sole survivor.

Our decision that George Edwards takes as survivor a three-fourths undivided interest in fee in all the lands embraced in Item 2 of the will is supported by prior decisions of this Court in unbroken line (so far as the writer can ascertain) beginning in 1840. Gregory v. Beasley, 36 N.C. 25; Skinner v. Lamb, 25 N.C. 155; Threadgill v. Ingram, 23 N.C. 577; Hilliard v. Kearney, 45 N.C. 221; Ham v. Ham, 168 N.C. 486, 84 S.E. 840; Wooten v. Hobbs, 170 N.C. 211, 86 S.E. 811; Dicks v. Young, 181 N.C. 448, 107 S.E. 220; Mercer v. Downs, 191 N.C. 203, 131 S.E. 575; Hummell v. Hummell, 241 N.C. 254, 85 S.E. 2d 144.

While the judgment of the Superior Court of Greene County is affirmed in so far as it relates to the interests of the parties in the land in controversy, it is modified by striking out that portion which directs a partition of the land. The question of partition does not arise on this record. That question may be determined if and when desirable by a proceeding before the Clerk Superior Court of Greene County.

Modified and affirmed.

BabNHIll, C. J., took no part in the consideration or decision of this case.