Smith v. . Parks

97 S.E. 209, 176 N.C. 406, 1918 N.C. LEXIS 258

• Court: Supreme Court of North Carolina
• Decided: November 13, 1918
• Status: Published

Opinion

AlleN, J.

It is clear that the deed in question would have conveyed a fee-simple absolute, under the authority of Price v. Griffin, 150 N. C., 523, if nothing appeared after tbe words, “surviving heirs of her body,” which, under the statute abolishing estates in tail and converting them to estates in fee (Rev., sec. 1578), means the same as “surviving heirs”; but the decision in Williams v. Blizzard, at this term, construing language in a deed equally favorable to the contention of the plaintiff, makes it imperative to hold that the concluding words, “if any, all of the •above mentioned and described premises; but should she die without leaving such heir or heirs, then the same is to revert back to her nearest kin, according to law,” reduces the absolute estate to one that is de-feasible.

The language in the Price case, which was held to convey a fee, was, “during the term of his lifetime, and at his death to his surviving heirs”; and in the Williams case, which rendered the fee defeasible, following the words David "Williams and his lawful heirs, “children, if any; if not, to his brothers and sisters, respectively.”

These authorities are conclusive against the position of the plaintiffs; but as the estate conveyed is a defeasible fee, a conveyance by the present owner will pass the complete title to the purchaser, provided Aby Smith leaves children living at her death, under Whitfield v. Garris, 131 N. C., 148; S. c., 134 N. C., 24.

Affirmed.