Glenn v. . Ashby

162 S.E. 555, 202 N.C. 244, 1932 N.C. LEXIS 471

• Court: Supreme Court of North Carolina
• Decided: February 17, 1932
• Status: Published

Opinion

Adams, J.

The controversy turns upon the question whether Rex Weathersby acquired a title in fee simple under the rule in Shelley’s case. The plaintiff insists that the rule applies and that he can therefore convey to the grantee an indefeasible title, while the defendant takes the position that the ulterior limitation prevents the application of the rule. His Honor adopted the plaintiff’s view.

Conceding the position that if the terms of the devise carry the entire estate in fee tail whether general or special the first devisee takes an estate in fee, we find that the phrase, “heirs of Rex Weathersby by .,” is unimportant. Morehead v. Montague, 200 N. C., 497; Sessoms v. Sessoms, 144 N. C., 121; Jones v. Ragsdale, 141 N. C., 200.

The property is conveyed to “Rex Weathersby for life with remainder to the bodily heirs of said Rex Weathersby by .” This clause standing alone transfers a title in fee to the grantee, but it is followed by the words “if any”- — i. e., if there are any bodily heirs. It is admitted that the grantee has children, living bodily heirs. The condition imposed by the words “if any” is thus fulfilled and the limitation to Medlin is defeated. By the express terms of the deed Rex Weathersby takes the fee. Substantially similar language was construed in Radford v. Rose, 178 N. C., 288, in which it is said, “Note that the language is not ‘dying without bodily heirs/ or Ieaving.no bodily heirs/ but that ‘they have no bodily heirs/ a condition fully met by the fact that the plaintiff has three bodily heirs, to wit, three living children.”

Upon the agreed facts it is not necessary to intimate what the effect would have been had the ulterior limitation depended upon the death of Rex Weathersby without bodily heirs surviving him. Judgment Affirmed.