Clark v. . Clark

139 S.E. 437, 194 N.C. 288, 1927 N.C. LEXIS 73

• Court: Supreme Court of North Carolina
• Decided: September 28, 1927
• Status: Published

Opinion

BuogdeN, J.

Where real estate is devised to “nearest heirs at law” of a person leaving brothers and sisters of whole blood and half blood, do such brothers and sisters take equally, or do the brothers and sisters of the whole blood take the entire interest to the exclusion of the half blood?

Under the fifth item of the will of Joseph G-. Williams it was provided that, if Cleveland Williams “should die without heirs,” all the real estate bequeathed to him “shall go back to my beloved wife or her nearest heirs at law.” Amelia G-. Williams, wife of testator, died, leaving a half brother, two half sisters, and the children of a deceased half sister, and also leaving two brothers. The brothers of the whole blood claim that they are the “nearest heirs at law” of Amelia G. Williams, and that therefore they take the entire property.

The expression in the fifth item of the will that if Cleveland Williams “should die without heirs” means that in the event Cleveland Williams should die without issue, the land devised to him should go to the “nearest heirs at law” of Amelia G. Williams. Massengill v. Abell, 192 N. C., 240.

Under the decisions of this Court the “nearest heirs at law” of Amelia G. Williams, under the will as written, take as purchasers under the will of Joseph G. Williams and not by descent. Kirkman v. Smith, 174 N. C., 603; Yelverton v. Yelverton, 192 N. C., 614.

As the “nearest heirs at law” of Amelia G. Williams take by purchase and not by descent, then it follows that her brothers and sisters of the half and whole blood take equally as tenants in common, and the judgment of the trial judge is correct.

Affirmed.