Fuller v. Rhododendron Corp.

178 S.E. 116, 207 N.C. 660, 1935 N.C. LEXIS 241

Opinion

Stacy, C. J.

On tbe bearing tbe title offered was properly made to depend upon tbe construction of tbe following item in tbe will of Solomon Jones:

“I give, devise, and bequeath my estate and property, real and personal, as follows, tbat is to say:

“My real and personal estate on ‘Mt. Hebron,’ in Henderson County, North Carolina, to go to my wife, Assena T. Jones, during her mortal life, then to be sold and divided equally among my first wife’s children, and if none alive, to my first wife’s grandchildren.”

Tbe case states tbat Jane Cox was tbe only child of tbe testator’s first wife to survive bis widow, Assena T. Jones. Tbe plaintiff has acquired, by mesne conveyances, all of Jane Cox’s interest in said land.

On authority of Brown v. Guthery, 190 N. C., 822, tbe trial court held tbat, under tbe will of Solomon Jones, bis widow, Assena T. Jones, took a life estate in said land, with remainder in fee to tbe children of tbe testator’s first wife who should survive bis widow, and tbat as Jane Cox alone of bis first wife’s children survived bis widow, she was entitled to tbe remainder in fee. This ruling would seem to be correct. Watson v. Smith, 110 N. C., 6, 14 S. E., 640.

Nor is plaintiff’s title affected by tbe testator’s direction to sell tbe land and divide tbe proceeds. Witty v. Witty, 184 N. C., 375, 114 S. E., 482; 40 Cyc., 1999.

Affirmed.