Bizzell v. . Building Association , 172 N.C. 158 ( 1916 )

The only question involved in this controversy is the estate that the plaintiff Ruth Bond Bizzell takes under the will of her grandmother, Susan J. Bond. Said plaintiff is the wife of her coplaintiff, and they have one child, now 4 years of age. The clause of the will reads as follows:

"Second, I bequeath to my beloved granddaughter, Ruth Bond, my house and lot situated on East Street in the city of Kinston, North Carolina. Should said Ruth Bond die without lawful heirs, said house and lot to go to Clarence Bond, Paul Bond, and William Bond, my grandchildren."

His Honor held that Ruth Bond, the plaintiff, took an estate in fee in the whole, and could, therefore, make a good title to the property. In this we think there was error.

The word "heirs" as used in the will evidently means children, and was used in that sense by the testator; else it is meaningless. The will should be construed as a whole so as to give effect to every part of it. It was, therefore, erroneous for the learned judge to discard entirely the limitation over to testator's grandchildren.

It is well settled that where the context of the will indicates that the testator used the word "heirs" in the sense of children, the courts will so construe the will as to give effect to the intention of the testator, (160) which is a cardinal rule in the construction of wills. Smith v. Lumber Co., 155 N.C. 389; Smith v. Proctor, 139 N.C. 322.

The ulterior limitation to testator's other grandchildren plainly indicates that the testator intended that her granddaughter's estate should terminate at her death if she should die without leaving children. Whether she will die leaving children cannot be determined until feme plaintiff's death. She thus takes a defeasible fee, that is to say, a fee-simple estate, to be divested if she dies without leaving children surviving her.Whitfield v. Garris, 131 N.C. 148, and 134 N.C. 25, on rehearing.

It is stated in the record that William Bond, mentioned in the will, died before the testator, having never married. The testator, therefore, died intestate as to the contingent interest devised to him.

According to the record, Ruth Bond, the feme plaintiff, Clarence Bond, and Paul Bond, children of W. R. Bond, deceased, are the sole heirs at law of their grandmother, Susan J. Bond, the testator. Thus the said plaintiff is seized of a present estate in fee as to one-third of the lot and of a defeasible fee as to the other two-thirds. She, therefore, cannot convey a good and indefeasible title to the entire property to defendant.

Reversed.

Cited: Kornegay v. Cunningham, 174 N.C. 210 (1c); Love v. Love,179 N.C. 117(1c); Alexander v. Fleming, 190 N.C. 817(1c);Williams v. Sasser, 191 N.C. 456 (1c); Elmore v. Austin,232 N.C. 20(1c).