Daly v. . Pate

Connor, J. If Clyde Newsome Davis, at her death, shall leave a child or children surviving her, such child or children will take no interest or estate under Item IY of the will of W. S. Newsome, in the land devised therein to Clyde Newsome (Davis) for the reason that under said Item IY, Clyde Newsome Davis does not take an estate in said land for her life, with remainder to her child or children, surviving her. Whitfield v. Garris, 131 N. C., 148, 42 S. E., 568; S. c., 134 N. C., 24, 45 S. E., 905. In such case, the estate of Clyde Newsome Davis in said land, which during her life is a defeasible fee (West v. Murphey, 197 N. C., 488, 149 S. E., 731), will become an indefeasible fee, and the deed executed by the plaintiffs, who claim under Clyde Newsome Davis, if accepted by the defendant, will vest in him a good and indefeasible title to the land conveyed by said deed. *225 If Clyde Newsome Davis, at her death, shall leave no child or children surviving her, the land devised to her by Item IV of the will of W. S. Newsome will revert to his estate, to be equally divided among (between?) his nephews and nieces, then living. If at the death of Clyde Newsome Davis the land shall revert to the estate of W. S. New-some, as provided in Item IV of his will, and at that date there be living nephews and nieces of the testator, the land will go to such nephews and nieces. In that case, by reason of the agreed facts and of the deed dated 19 December, 1925, the nephews and nieces of the testator, living at the death of Clyde Newsome Davis, will be estopped from claiming as against the plaintiffs any right, title, interest, or estate in and to the land described in the agreed statement of facts. In such case, the deed executed by the plaintiffs, who claim under Clyde Newsome Davis, if accepted by the defendant, will vest in him a good and indefeasible title to the land conveyed by the said deed. But if at her death Clyde Newsome Davis shall leave no child or children surviving her, and there shall then be no living nephew or niece of the testator, the land will go to the heirs at law of W. S. New-some living at the death of Clyde Newsome Davis. In such case, such heirs at law will not be estopped from claiming the land described in the agreed statement of facts, as against any person or persons claiming under Clyde Newsome Davis, and the deed executed by the plaintiffs, who claim under Clyde Newsome Davis, if accepted by the defendant, will not vest in him a good and indefeasible title to the land conveyed by said deed. See Burden v. Lipsitz, 166 N. C., 523, 82 S. E., 863. The deed executed by the plaintiffs and tendered to the defendant is sufficient to convey all the right, title, interest, or estate in the land described therein, which was owned by Clyde Newsome Davis under Item IV of her father’s will, and under the deed executed on 19 December, 1925, by the then living nephews and nieces of the testator. It cannot be determined until the death of Clyde Newsome Davis whether or not the nephews or nieces of the testator who executed the deed dated 19 December, 1925, have any right, title, interest, or estate in the land described in their deed. It may be that none of them will be living at the death of Clyde Newsome Davis. In that case, the title which Clyde Newsome Davis had to the land devised to her by Item IV of the will of her father will not be fortified by the deed executed by the nephews and nieces living at the date of the deed. There is error in the judgment. Eeversed. Stacy, C. J., dissents.