Foster v. . Lee

64 S.E. 761, 150 N.C. 688, 1909 N.C. LEXIS 124

• Court: Supreme Court of North Carolina
• Decided: May 19, 1909
• Status: Published

Opinion

Clark, C. J.

Tbe sole question presented by tbis appeal is whether Clara May Foster is owner in fee of tbe land contracted to be conveyed by her and can convey a good title thereto.

It is agreed that ■ J. M. Hamilton died seized and possessed of tbe premises. By item 4 of bis will be devised tbe land in question to bis daughter, “Clara May Foster, wife of R. M. Foster, and her heirs forever.” By item 5 be provided that tbe “above-devised lands shall not be disposed of, but shall descend to tbe children of my above-mentioned daughter.”

Item 4 gave tbe plaintiff Clara May a fee simple. Tbe words of item 5 did not convert tbis into a life estate. There is no devise to tbe grandchildren; there is simply an attempted restraint ujion alienation, which is contrary to public policy and void. Tbis is settled by a long line of authorities, but it is sufficient to refer to Wool v. Fleetwood, 136 N. C., 460, a recent case, in which the subject is fully discussed and authorities cited by Mr. Justice Walicer.

It is admitted that Clara May Foster has not encumbered or conveyed the premises. His Honor properly held that she owned the land in fee and had a right to convey the same, and rendered judgment against her vendee for the purchase money.

No Error.