Benbury v. . Butts

Staoy, J. On tbe facts agreed, tbe title olfered was properly made to depend upon tbe construction of tbe following clause in tbe will of Noab Bess: “I give and bequeath to Dora Benbury, my wife’s daughter, tbe bouse and lot (if there is a bouse on it) where I lived before it was burned down, situated on east end of Church Street, in tbe town of Edenton, N. C., to her and her children, and to their children’s children, measuring 160 feet deep and 30 feet wide, also all my household furniture, possession to be given after the death of myself and wife, Ellen.” The case states that Ellen Bess is dead; that Dora Benbury had two . children, and no grandchildren or great grandchildren, living at the time of the testator’s death; and that said children are still living. We think it is clear that under the foregoing devise the title to the lot in question vested in Dora Benbury and her two children, living at the time, as tenants in common. Cole v. Thornton, 180 N. C., 90; Cullens v. Cullens, 161 N. C., 344; Condor v. Secrest, 149 N. C., 205. The children being entitled to share with their mother in the estate devised, it follows that the deed of Dora Benbury and her husband — -the two children not joining — was insufficient to convey a full and complete fee-simple title to the property described in the complaint. Affirmed.