Jernigan v. . Evans

104 S.E. 77, 180 N.C. 87, 1920 N.C. LEXIS 31

• Court: Supreme Court of North Carolina
• Decided: September 29, 1920
• Status: Published

Opinion

'WaxKER, J.,

after stating tbe case: We do not understand wby tbe plaintiffs cannot pass a good title to tbe defendants Evans and Gilliam to tbe land described in tbe contract. By tbe will and codicil, tbe land in question was devised to J. H. Jernigan and bis wife Lizzie B., for tbeir lives, and tbey beld by entireties, altbougb tbey bad but life estates. Todd v. Zachary, 45 N. C., 286; Jones v. Potter, 89 N. C., 220; Simonton v. Cornelius, 98 N. C., 433. Tbey beld tbe land just as did J. H. Jernigan by tbe terms of tbe original will, before tbe codicil •was’added. J. H. Jernigan is dead, and, of course, be and bis wife can bave no more children. Tbe deed of Mrs. Jenigan, and ber daughter, Mrs. Bell, and ber son-in-law, Alexander H. Bell, will pass a good title, unless tbeir estate is affected by tbe clause devising tbe land over to testatrix’s beirs provided Mrs. Bell, ber grandchild, should die without children. But this cannot be, as there is a further provision tbat a sale and deed by tbe grandchildren shall be sufficient to pass a valid title to tbe purchaser) in case of tbe grandchildren’s death afterwards without children. This lánguage is very plain and easily understandable. It can bave but one meaning, which is, tbat though it is provided in tbe will tbat, if tbe grandchildren should die without children, tbe land should go to tbe testatrix’s own beirs, yet if tbe grandchildren shall bave sold and conveyed tbe land, tbe purchaser shall acquire a good title. This would, of course, prevent tbe land from going over under tbe prior clause in tbe will.

It is therefore unnecessary to consider or discuss tbe other question suggested as to bow, if at all,, tbe rule against perpetuities may affect tbe question, as there could be no perpetuity. Tbe further limitation to ulterior devisees would be cut off.

Our opinion is tbat there was error in tbe ruling and judgment of tbe court, which is reversed, and judgment will be entered in tbe court below for plaintiffs accordingly.

Eeversed.