O'Quinn v. . Crane

Supreme Court of North Carolina

O'Quinn v. . Crane

126 S.E. 174, 189 N.C. 97, 1925 N.C. LEXIS 252

CourtSupreme Court of North Carolina

DecidedJanuary 24, 1925

StatusPublished

Cited by1 cases

This text of 126 S.E. 174 (O'Quinn v. . Crane) 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

O'Quinn v. . Crane, 126 S.E. 174, 189 N.C. 97, 1925 N.C. LEXIS 252 (N.C. 1925).

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Opinion

Clarkson, J.

The only question presented for our consideration is the meaning of the language in the section of the will before mentioned, “turn over to my wife any part or all of my estate for her own use and benefit without let or hindrance.”

*99 C. S., 4162 is as follows: “When real estate shall be 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.” .

If the testator had intended a life estate he could have said so, but, on the contrary, he provided, if his wife made the written demand on the trustee, all of the estate should be turned over to her for her own use and benefit without let or hindrance. The words are not the ordinary technical, legal words, as frequently found in wills, but the language, we think, broad and comprehensive enough to show a clear intent that his wife was the primary and principal object of testator’s bounty. He had no child, but his wife had a daughter that he treated as his own. Not only the statute, but the decisions of this Court, construe a devise to be in fee unless it appears otherwise by clear and express words. Fellowes v. Durfey, 163 N. C., 305; Smith v. Creech, 186 N. C., 187; Weaver v. Kirby, 186 N. C., 387.

Following section 2 of item 4 of the will, section 3 is as follows: “Should any part of my estate remain in the hands of my trustee at the death of my said wife, then my trustees shall pay over the income therefrom to Mrs. Willie O’Quinn Coble, for and during the term of her natural life.”

This section by clear inference explains section 2, and indicates conclusively that all the estate could be demanded and disposed of-under section 2, and if all should not be and some remained, how it should devolve.

These two sections are the only ones we consider materially pertinent to gather the intention of the testator — the polar star in the construction of the will. We are of the opinion that plaintiff has a fee-simple title to the land under the will and can make her contract good. We are of the opinion that the judgment of the court below was in all respects correct, and it is hereby

Affirmed.

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Clarkson, J.

The only question presented for our consideration is the meaning of the language in the section of the will before mentioned, “turn over to my wife any part or all of my estate for her own use and benefit without let or hindrance.”

*99 C. S., 4162 is as follows: “When real estate shall be 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.” .

If the testator had intended a life estate he could have said so, but, on the contrary, he provided, if his wife made the written demand on the trustee, all of the estate should be turned over to her for her own use and benefit without let or hindrance. The words are not the ordinary technical, legal words, as frequently found in wills, but the language, we think, broad and comprehensive enough to show a clear intent that his wife was the primary and principal object of testator’s bounty. He had no child, but his wife had a daughter that he treated as his own. Not only the statute, but the decisions of this Court, construe a devise to be in fee unless it appears otherwise by clear and express words. Fellowes v. Durfey, 163 N. C., 305; Smith v. Creech, 186 N. C., 187; Weaver v. Kirby, 186 N. C., 387.

Following section 2 of item 4 of the will, section 3 is as follows: “Should any part of my estate remain in the hands of my trustee at the death of my said wife, then my trustees shall pay over the income therefrom to Mrs. Willie O’Quinn Coble, for and during the term of her natural life.”

This section by clear inference explains section 2, and indicates conclusively that all the estate could be demanded and disposed of-under section 2, and if all should not be and some remained, how it should devolve.

These two sections are the only ones we consider materially pertinent to gather the intention of the testator — the polar star in the construction of the will. We are of the opinion that plaintiff has a fee-simple title to the land under the will and can make her contract good. We are of the opinion that the judgment of the court below was in all respects correct, and it is hereby

Affirmed.

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126 S.E. 174, 189 N.C. 97, 1925 N.C. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oquinn-v-crane-nc-1925.

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