Lineberger v. . Phillips

153 S.E. 118, 198 N.C. 661, 1930 N.C. LEXIS 441

• Court: Supreme Court of North Carolina
• Decided: May 7, 1930
• Status: Published

Opinion

Stacy, C. J.

The case turns on the question as to whether Laban Lineberger acquired an undivided one-half interest in fee, or is able to convey such an interest, in the lands devised to him in items three and four of his father’s will.

His Honor correctly held for the plaintiffs. Roane v. Robinson, 189 N. C., 628, 127 S. E., 626. It is provided by C. S., 4162, that when real estate is devised to any person the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity. Hence, under this statute, an unrestricted devise of real estate passes the fee. Barbee v. Thompson, 194 N. C., 411, 139 S. E., 838. Indeed, it is generally necessary that restraining expressions be used to confine a devise to the life of the devisee. Holt v. Holt, 114 N. C., 241, 18 S. E., 967.

The learned counsel for the defendant has filed an elaborate brief, analyzing the will in every detail, but we think the judgment below is in keeping with the rights of the parties and the law of the case.

Affirmed.