Morehead v. . Montague

Supreme Court of North Carolina

Morehead v. . Montague

157 S.E. 793, 200 N.C. 497, 1931 N.C. LEXIS 371

CourtSupreme Court of North Carolina

DecidedMarch 25, 1931

StatusPublished

Cited by9 cases

This text of 157 S.E. 793 (Morehead v. . Montague) 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

Morehead v. . Montague, 157 S.E. 793, 200 N.C. 497, 1931 N.C. LEXIS 371 (N.C. 1931).

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Opinion

AdaMs, J.

Our disposition of the present appeal is dependent upon the interpretation of the deed executed by J. K. Todd on 17 December, 1897. If his deed conveyed to Della Todd, his wife, a title in fee, the deed which he and his wife executed and delivered to E. R. Gulley on 25 November, 1903, likewise conveyed the fee,, and not merely an estate for her life.

A conveyance of land “to Della Todd during her lifetime and at her death to the heirs of her body,” without additional words, would transfer the fee. Foley v. Ivey, 193 N. C., 453; Tyson v. Sinclair, 138 N. C., 23; Leathers v. Gray, 101 N. C., 162. What is the effect of the qualifying words, “begotten by J. K. Todd” ?

In Thompson v. Crump, 138 N. C., 32, this Court held that a devise of land “to my son James for and during his life, and after his death to his' lawful heirs, born of his wife,” was not within the rule in Shel-letfs case, the words “born of his wife” qualifying the explaining phrase “his lawful heirs,” so as to confine the remainder to the children of his wife and to prevent the operation of the rule. The decision followed Dawson v. Quinnerly, 118 N. C., 188. But in Sessoms v. Sessoms, 144 N. C., 121, the Court disapproved the ruling in these cases and in Bird v. Gilliam, 121 N. C., 326, and held that the first devisee takes an estate in fee simple if the terms of the devise carry the entire estate in fee tail, whether general or special. So it has been held that a deed conveying land to a married woman and her heirs “by her present husband” vests an estate in fee. Jones v. Raysdale, 141 N. C., 200; Paul v. Paul, 199 N. C., 522. Under the former law the estate would have been a fee tail special, but our statute provides that every person seized of an estate tail shall be deemed to be seized thereof in fee simple. C. S., 1734. The rule in question applies where there is a gift to a husband with remainder to the heirs of his body by his present wife, or to a wife with remainder to the heirs of her body by her present husband. In the first instance the heirs are to be ascertained upon the death of the husband; in the latter upon the death of the wife. I Tiffany on Real Property, 532, sec. 148. It will be noted that the limitation over was defeated and the estate became absolute upon the birth of the son, Jack Marlan Todd. Radford v. Rose, 178 N. C., 288. Judgment

Affirmed.

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AdaMs, J.

Our disposition of the present appeal is dependent upon the interpretation of the deed executed by J. K. Todd on 17 December, 1897. If his deed conveyed to Della Todd, his wife, a title in fee, the deed which he and his wife executed and delivered to E. R. Gulley on 25 November, 1903, likewise conveyed the fee,, and not merely an estate for her life.

A conveyance of land “to Della Todd during her lifetime and at her death to the heirs of her body,” without additional words, would transfer the fee. Foley v. Ivey, 193 N. C., 453; Tyson v. Sinclair, 138 N. C., 23; Leathers v. Gray, 101 N. C., 162. What is the effect of the qualifying words, “begotten by J. K. Todd” ?

In Thompson v. Crump, 138 N. C., 32, this Court held that a devise of land “to my son James for and during his life, and after his death to his' lawful heirs, born of his wife,” was not within the rule in Shel-letfs case, the words “born of his wife” qualifying the explaining phrase “his lawful heirs,” so as to confine the remainder to the children of his wife and to prevent the operation of the rule. The decision followed Dawson v. Quinnerly, 118 N. C., 188. But in Sessoms v. Sessoms, 144 N. C., 121, the Court disapproved the ruling in these cases and in Bird v. Gilliam, 121 N. C., 326, and held that the first devisee takes an estate in fee simple if the terms of the devise carry the entire estate in fee tail, whether general or special. So it has been held that a deed conveying land to a married woman and her heirs “by her present husband” vests an estate in fee. Jones v. Raysdale, 141 N. C., 200; Paul v. Paul, 199 N. C., 522. Under the former law the estate would have been a fee tail special, but our statute provides that every person seized of an estate tail shall be deemed to be seized thereof in fee simple. C. S., 1734. The rule in question applies where there is a gift to a husband with remainder to the heirs of his body by his present wife, or to a wife with remainder to the heirs of her body by her present husband. In the first instance the heirs are to be ascertained upon the death of the husband; in the latter upon the death of the wife. I Tiffany on Real Property, 532, sec. 148. It will be noted that the limitation over was defeated and the estate became absolute upon the birth of the son, Jack Marlan Todd. Radford v. Rose, 178 N. C., 288. Judgment

Affirmed.

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157 S.E. 793, 200 N.C. 497, 1931 N.C. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morehead-v-montague-nc-1931.

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