Murdock v. Deal

208 N.C. 754

Opinion

CoNNOR, J.

There is no error in the judgment in this action. By virtue of the last will and testament of her father, T. L. Hart, deceased, and under the statute, C. S., 1734, the feme plaintiff is the owner of an estate in fee simple in the twelve-acre tract described in the complaint. This estate, however, is defeasible upon the death of the feme plaintiff without bodily heirs. Whitfield v. Garris, 131 N. C., 148, 42 S. E., 568, and 134 N. C., 24, 45 S. E., 904. It is clear that the words “bodily heirs,” used by the testator, must be construed as meaning children or issue; otherwise, the limitation over to the heirs of the sisters of the testator would be meaningless. Rollins v. Keel, 115 N. C., 68, 20 S. E., 209. See Pugh v. Allen, 179 N. C., 307, 102 S. E. 394.

The limitation over to the heirs of the sisters of the testator, upon the death of the feme plaintiff without bodily heirs or issue, is not void. The provision in the will that the home place of the testator, which includes the twelve-acre tract described in the complaint, shall not be sold by either the feme plaintiff or the remaindermen is void as against public policy. This provision, however, does not affect the validity of the devise, either to the plaintiff or to the remaindermen. See Lee v. Oates, 171 N. C., 717, 88 S. E., 889.

There is nothing in the codicil which affects the estate in the home place of the testator devised in the will to the feme plaintiff.

The judgment is

Affirmed.

Devin, J., took no part in the consideration or decision of this case.