Jackson v. . Powell

Supreme Court of North Carolina

Jackson v. . Powell

35 S.E.2d 892, 225 N.C. 599, 1945 N.C. LEXIS 381

CourtSupreme Court of North Carolina

DecidedNovember 21, 1945

StatusPublished

Cited by6 cases

This text of 35 S.E.2d 892 (Jackson v. . Powell) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jackson v. . Powell, 35 S.E.2d 892, 225 N.C. 599, 1945 N.C. LEXIS 381 (N.C. 1945).

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Opinion

Denny, J.

The operative provisions of the deed under consideration purport to convey to the plaintiffs a fee simple title to the premises described therein. When real estate is conveyed to any person, the conveyance shall be construed to be in fee simple unless such conveyance in plain words shows the grantor intended to convey an estate of less dignity. G. S., 39-1; Triplett v. Williams, 149 N. C., 394, 63 S. E., 79. Moreover, as stated in Campbell v. Cronly, 150 N. C., 457, 64 S. E., 213: “When language is used having a clearly defined legal signification, there is no room for construction to ascertain the intent; it must be given its legal meaning and effect.” Therefore, the provision inserted .in plaintiffs’ deed, to wit, “The grantors hereof make this conveyance to the grantees named above during their natural lifetime then to their bodily heirs to the third generation,” is not repugnant to the general provisions of the deed. Bagwell v. Hines, 187 N. C., 690, 122 S. E., 659. We are not confronted with irreconcilable provisions and the necessity of deciding which is controlling, as was the case in Wilkins v. Norman, 139 N. C., 40, 51 S. E., 797; Boyd v. Campbell, 192 N. C., 398, 135 S. E., 121, and in many other similar eases. When the words “bodily heirs” or “heirs of the body” are used in a deed or will, and are not so qualified as to indicate that they were used merely as a descriptio personarum, they are equivalent to the words “heirs general,” Cohoon v. Upton, 174 N. C., 88, 93 S. E., 446, and Jones v. Whichard, 163 N. C., 241, 79 S. E., 503. The phrase, “to the third generation,” which appears in the special provision, is void, being within the rule against perpetuities. Hence the legal meaning and effect of the above provision, under the rule in Shelley’s case, gave the plaintiffs a fee simple title to the property referred to herein. Bank v. Snow, 221 N. C., 14, 18 S. E. (2d), 711; Whitley v. Arenson, 219 N. C., 121, 12 S. E. (2d), 906; Bank v. Dortch, 186 N. C., 510, 120 S. E., 60; Harrington v. Grimes, 163 N. C., 76, 79 S. E., 301.

The judgment of the court below is

Affirmed.

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Denny, J.

The operative provisions of the deed under consideration purport to convey to the plaintiffs a fee simple title to the premises described therein. When real estate is conveyed to any person, the conveyance shall be construed to be in fee simple unless such conveyance in plain words shows the grantor intended to convey an estate of less dignity. G. S., 39-1; Triplett v. Williams, 149 N. C., 394, 63 S. E., 79. Moreover, as stated in Campbell v. Cronly, 150 N. C., 457, 64 S. E., 213: “When language is used having a clearly defined legal signification, there is no room for construction to ascertain the intent; it must be given its legal meaning and effect.” Therefore, the provision inserted .in plaintiffs’ deed, to wit, “The grantors hereof make this conveyance to the grantees named above during their natural lifetime then to their bodily heirs to the third generation,” is not repugnant to the general provisions of the deed. Bagwell v. Hines, 187 N. C., 690, 122 S. E., 659. We are not confronted with irreconcilable provisions and the necessity of deciding which is controlling, as was the case in Wilkins v. Norman, 139 N. C., 40, 51 S. E., 797; Boyd v. Campbell, 192 N. C., 398, 135 S. E., 121, and in many other similar eases. When the words “bodily heirs” or “heirs of the body” are used in a deed or will, and are not so qualified as to indicate that they were used merely as a descriptio personarum, they are equivalent to the words “heirs general,” Cohoon v. Upton, 174 N. C., 88, 93 S. E., 446, and Jones v. Whichard, 163 N. C., 241, 79 S. E., 503. The phrase, “to the third generation,” which appears in the special provision, is void, being within the rule against perpetuities. Hence the legal meaning and effect of the above provision, under the rule in Shelley’s case, gave the plaintiffs a fee simple title to the property referred to herein. Bank v. Snow, 221 N. C., 14, 18 S. E. (2d), 711; Whitley v. Arenson, 219 N. C., 121, 12 S. E. (2d), 906; Bank v. Dortch, 186 N. C., 510, 120 S. E., 60; Harrington v. Grimes, 163 N. C., 76, 79 S. E., 301.

The judgment of the court below is

Affirmed.

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35 S.E.2d 892, 225 N.C. 599, 1945 N.C. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-powell-nc-1945.

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