Cole v. . Thornton , 180 N.C. 90 ( 1920 )

This is an action to recover the purchase price of a tract of land, the defendant refusing to pay and to accept the deed tendered upon the ground that the plaintiffs do not own an indefeasible title in fee.

The plaintiff, Alice Cole, claims under item seven of the will of W. G. Yelvington, which reads as follows:

"Item 7. I give and devise all the remainder of my real estate, wherever situate, to my wife, Mary J. Yelvington, during her natural life; then to my daughter Alice and her children, if any; but if my daughter Alice die leaving no living issue, then to the heirs at law of my wife, Mary J. Yelvington."

It is agreed by the parties:

"1. That the said W. G. Yelvington was the owner in fee of the above described lot at the time of his death, and that it was a part of the lands conveyed by said item seven above set out.

"2. That Mary J. Yelvington died on ______ June, 1920, and that Alice Cole, one of the parties hereto, is the same person named as `my daughter Alice in the above item of said will, and that she is the only child and heir at law of both W. G. Yelvington, deceased, and Mary J. Yelvington, deceased; and that she has no children, and has never had any child or children."

Judgment in favor of the plaintiff, and defendant appealed. The doubt that arises as to the title is upon the contingency that children of the plaintiff Alice may be hereafter born, and would be well founded if the devise to the children was in remainder to take effect after the death of Alice, as "a bequest or use limited to the children of A. after an estate to her for life remains open, so as to take in all the children she may have at her death." Dupree v. Dupree,45 N.C. 168, approved in Powell v. Powell, 168 N.C. 562.

The devise is to "Alice and her children," and "As early as the time of Lord Coke, it was held in Wild's case, 6 Rep., 17, that where lands are devised to a person and his children, and he has no child at the time of the devise, the parent takes an estate tail; for it is said that `the intent of the devisor is manifest and certain that the children (or issues) should take, and, as immediate devisees, they cannot take, because they are not in rerum natura; and by way of remainder they cannot take, for that was not his (the devisor's) intent, for the gift is immediate; therefore, such words shall be taken as words of limitation.' But, it is said in the same case, that `if a man devise land to A. and his children or issue, and he then has issue of his body, there his express intent may take effect according to the rule of the common law, and no manifest and certain intent appears in the will to the contrary; and, therefore, in such case they shall have but a joint estate for life.'" Moore v. Leach, 50 N.C. 90.

The principle that an estate to A. and her children, when there are children, "vests the present interest in them as tenants in common" is affirmed in Candor v. Secrest, 149 N.C. 205, and in Cullens v. Cullens,161 N.C. 344, and that if there are no children, that A. would take an estate in tail at common law, which has been converted into a fee by statute, in Silliman v. Whitaker, 119 N.C. 92; Lewis v. Stancil,154 N.C. 326, the Court saying in the last case: "In Silliman v. Whitaker,119 N.C. 92, it was said: `It was settled in Wild's case, 6 Rep., 17 (3 Coke, 288), decided 41 Elizabeth, that a devise to B. and his or her children, B. having no children when the testator died, is an estate tail. If he have children at that time, the children take as joint tenants with the parent. This has been uniformly held in England.' The late case in the House of Lords, Clifford v. Koe, 5 App., 447, was cited, which approvedWild's case, opinions being delivered seriatim by Lord Chancellor Selborne, Lord Hatherly, Lord Blackburn, and Lord Watson, who unanimously sustainedWild's case, stating that `for these three hundred years it has been the uniform ruling in England.'"

This being the correct rule of construction, and it being kept in mind that the life tenant, Mary J. Yelvington, is dead, and that no children have ever been born to the daughter Alice, the devise would read to "my daughter Alice in fee, but if she die leaving no living issue, then to the heirs at law of my wife, Mary J. Yelvington," and, if so, if children are born, she has the fee, and if there are no children, she would still be the owner in fee as the only heir of Mary J. Yelvington, and, in either event, can convey in fee.

We are therefore of opinion the deed of the plaintiffs will pass a good title.

Affirmed.