Mangum v. Wilson

DeNNY, J. It appears from the agreed statement of facts that the plaintiffs, other than Leo Mangum, include all of the grandchildren of P. J. Mangum, the testator, together with the spouse of each grandchild who is married. Each plaintiff is more than 21 years of age and is under no disability. A number of these grandchildren have children who are great-grandchildren of the testator, but no great-grandchild of P. J. Man-gum, deceased, is living whose parent of the testator’s blood is not also living. Therefore, the appellants concede that the plaintiffs, other than Leo Mangum, are seized in fee simple of an undivided four-fifths interest in the property they have contracted to sell. The only question for determination is whether Leo Mangum, the sole surviving child of the testator, can convey a good and indefeasible fee simple title to the remaining one-fifth undivided interest in the property. This question necessitates an examination of the provisions of the testator’s will in order to ascertain his intent. And his intent should be given effect, unless contrary to some rule of law or at variance with public policy. Buffaloe v. Blalock, 232 N.C. 105, 59 S.E. 2d 625, and cited cases. *357 It appears tbat tbe testator assumed tbat bis widow, Sallie Anne Mangum, to wbom be gave all bis property, botb real and personal, during ber natural life, would not live until tbeir youngest child bad attained tbe age of 21 years. Tbis interpretation is supported by tbe language in tbe will as follows: “. . . at ber death (referring to tbe death of bis wife) my will is for all my property, botb real and personal, to remain as it is until tbe youngest child, Sallie Jackson Mangum, becomes twenty-one years of age, and then Lula and Leo Mangum is to have $250.00 each first and tbe remainder to stand as it is all together, and tbe clear rents to be equally divided among all my five children, except they all should agree to sell some part of it.” Tbis appeal requires an interpretation of tbe following portion of tbe will: “. . . remainder to stand as it is all together, and tbe clear rents to be equally divided among all my five children, except they all should agree to sell some part of it. If my children marry and die leaving children, tbeir part shall go to tbeir children. If any of my children die without heirs, tbeir part shall return to tbe Mangum bodily heirs.” Since tbe enactment of Section 12, Chapter 22 of tbe Public Laws of 1784 (Potter’s Code, Chapter 204, Section 12), now G.S. 31-38, when real estate is devised to any person, tbe 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 tbe will, or some part thereof, tbat tbe testator intended to convey an estate of less dignity. Lineberger v. Phillips, 198 N.C. 661, 153 S.E. 118; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626; Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838; Patrick v. Morehead, 85 N.C. 62. “Indeed, it is generally necessary tbat restraining expressions should be used to confine tbe gift to tbe life of tbe legatee or devisee.” Holt v. Holt, 114 N.C. 241, 18 S.E. 967; Lineberger v. Phillips, supra. In tbe case of Patrick v. Morehead, supra, Ashe, J., in speaking for tbe Court, quoted with approval from tbe opinion in tbe New York case of Jackson v. Robins, 16 Johnson, 537, as follows: “We may lay it down as an incontrovertible rule tbat where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee, and tbe only exception to tbe rule is where tbe testator gives to tbe first taker an estate for life only, by certain and express words, and annexes to it a power of disposition.” It is also generally held tbat a devise of tbe use, income, rents, and profits of property, amounts to a devise of tbe property itself, and will pass tbe fee, unless tbe will shows an intent to pass an estate of less dignity. Burcham v. Burcham, 219 N.C. 357, 13 S.E. 2d 615; Schwren v. Falls, 170 N.C. 251, 87 S.E. 49; Perry v. Hackney, 142 N.C. 368, 55 S.E. 289, 19 Am. Jur., Estates, section 24, page 484. *358 “A devise generally or indefinitely with power of disposition creates a fee.” Hardee v. Rivers, 228 N.C. 66, 44 S.E. 2d 476; Roane v. Robinson, supra; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. Consequently, in view of the rule of construction laid down in G.S. 31-38, and our decisions pursuant thereto, together with the general rule that a devise of the use, income, rents, and profits of property, is tantamount to a devise of the property itself, unless the will shows in plain and express words that the testator intended to convey an estate of less dignity, we hold that P. J. Mangum devised his property to his five children to be held as tenants in common in fee simple. Taylor v. Taylor, 228 N.C. 275, 45 S.E. 2d 368; Croom v. Cornelius, 219 N.C. 761, 14 S.E. 2d 799; Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817. We do not think the expression “except they all should agree to sell some part of it,” was intended to be a restriction upon the power of alienation or an indication of the testator’s intent to vest in his children less than a fee simple estate. Having stated in his will, “. . . remainder to stand as it is all together, and the clear rents to be equally divided among all my five children,” we think the reference to a sale of some part of his estate was merely a recognition of the fact that it might not be practical or desirable for his children to keep the entire estate intact and retain title to all of it. If, however, he intended it to be a limitation upon the right of alienation, or partition, we hold it to be void. Johnson v. Gaines, 230 N.C. 653, 55 S.E. 2d 191; Croom v. Cornelius, supra; Barco v. Owens, 212 N.C. 30, 192 S.E. 862; Williams v. Sealy, 201 N.C. 372, 160 S.E. 452; Combs v. Paul, 191 N.C. 789, 133 S.E. 93; Carroll v. Herring, supra; Schwren v. Falls, supra; Wool v. Fleetwood, 136 N.C. 460, 48 S.E. 785, 67 L.R.A. 444; Latimer v. Waddell, 119 N.C. 370, 26 S.E. 122, 3 L.R.A. (N.S.) 668. Furthermore, it would make no difference in the instant case were we to hold that Leo Mangum has only a life estate with power to sell or a defeasible fee with such power (Mabry v. Brown, 162 N.C. 217, 78 S.E. 78), since in either event should he die leaving issue, such issue would be estopped from claiming any interest in this particular property by the warranty in his deed to these defendants. Buffaloe v. Blalock, supra; Croom v. Cornelius, supra; Thames v. Goode, 217 N.C. 639, 9 S.E. 2d 485; Insurance Co. v. Sandridge, 216 N.C. 766, 6 S.E. 2d 876; Woody v. Cates, 213 N.C. 792, 197 S.E. 561; Williams v. R. R., 200 N.C. 771, 158 S.E. 473. Likewise, since all the Mangum bodily heirs who would hold a contingent interest in Leo Mangum’s one-fifth undivided interest, in his father’s estate, under such construction, are parties to this proceeding and have executed a deed to the premises involved, should Leo Mangum die without leaving issue, they, as well as those claiming under them, would be estopped by the warranty in their deed from claiming any *359 interest in tbe premises conveyed, to tbe defendants. Buffaloe v. Blalock, supra; Croom v. Cornelius, supra; Thames v. Goode, supra; Woody v. Cates, supra; Grace v. Johnson, 192 N.C. 734, 135 S.E. 849; James v. Griffin, 192 N.C. 285, 134 S.E. 849; Williams v. Biggs, 176 N.C. 48, 96 S.E. 643; Hobgood v. Hobgood, 169 N.C. 485, 86 S.E. 189. Tbe judgment of the court below is Affirmed.