Taylor v. . Taylor

45 S.E.2d 368, 228 N.C. 275, 1947 N.C. LEXIS 322

• Court: Supreme Court of North Carolina
• Decided: December 10, 1947
• Status: Published

Opinion

Stacy, C. J.

"What estate is devised in Item 3 of the Will of Lillie Taylor Jordan? The Superior Court adjudged a fee, and we approve.

It is provided by G. S., 31-38, that when real estate is devised to any person, the same shall be held and construed a devise in fee simple, unless such devise shall, in plain and express language 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. Elder v. Johnston, 227 N. C., 592; Early v. Tayloe, 219 N. C., 363, 13 S. E. (2d), 609. Consequently, an unrestricted or indefinite devise of real property is regarded as a devise in fee simple. Heefner v. Thornton, 216 N. C., 702, 6 S. E. (2d), 506; Barco v. Owens, 212 N. C., 30, 192 S. E., 862. And so,'also, is a devise generally to one person with limitation over to another of “whatever is left” at the death of the first taker. Patrick v. Morehead, 85 N. C., 62; Carroll v. Herring, 180 N. C., 369, 104 S. E., 892. In the ease last cited, it is said: “Where real estate is given absolutely to one person, with a gift over to another of such portion as may remain undis-posed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given.” Accordant: Croom v. Cornelius, 219 N. C., 761, 14 S. E. (2d), 799; Hambright v. Carroll, 204 N. C., 496, 168 S. E., 817; Lineberger v. Phillips, 198 N. C., 661, 153 S. E., 118; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; Fellowes v. Durfey, 163 N. C., 305, 79 S. E., 621; Holt v. Holt, 114 N. C., 241, 18 S. E., 967.

Indeed, it is a general rule of testamentary construction that an unrestricted devise of real estate carries the fee, and a subsequent clause in the will expressing a wish, desire, or even direction for the disposition of what remains at the death of the devisee, is not allowed to defeat the devise, nor limit it to a life estate. Barco v. Owens, supra. It is understood, of course, that this rule, as well as all rules of construction, must yield to the paramount intent of the testator as gathered from the four corners of the will. Jolley v. Humphries, 204 N. C., 672, 169 S. E., 417. Such was the reason for taking the case of Hampton v. West, 212 N. C., 315, 193 S. E., 290, out of the general rule; and' for like reason it is distinguishable from the present case.

The construction of the subject will, in accordance with the general rule, is approved.

Affirmed.