Gilmore v. . Sellars

59 S.E. 73, 145 N.C. 283, 1907 N.C. LEXIS 290

• Court: Supreme Court of North Carolina
• Decided: October 23, 1907
• Status: Published

Opinion

CoNNOR, J.,

after stating the facts: It is immaterial whether the trust declared in the will was, during the life of Eli Ratliff, active and not executed by the statute, or whether it was passive, in which case, by the operation of the statute, the legal title vested in Eli. The right of the petitioner to dower depends upon the estate which her husband took under the will. It is clear that, if the words “share and share alike” had not followed the words “to belong to his lawful heirs,” he would, under the rule in Shelly s case, have taken a fee simple. While there are no words expressly limiting his interest to a life estate, that it was the intention of the testator to do so is manifested by the use of the words “after the decease of my son, Eli Ratliff, to belong to,” etc. The exact question was decided by this Court in a .well-sustained opinion by Judge Ashe in Mills v. Thorne, 95 N. C., 362. There the limitation to the heirs of the devisee was followed by the words “to share and share equally.” The learned Justice, after reviewing the adjudged cases, says: “The consideration we have given the question leads us to the conclusion that the rule in Shelly’s case does not apply in this case; that the words ‘to share and share equally’ indicate an intention on the part of the testator to give the property to his sister and her heirs, * * * to be divided between them as tenants in common, * " * to be distributed per capita between such persons as may bring themselves under that description when the life estate terminated.” The “lawful heirs” of Eli Eatliff take- per capita as purchasers under the will of their grandfather, thus limiting his interest to a life estate, to which, of course, no right to dower attached.

His Honor’s judgment was correct, and must be

Affirmed.