Moore v. . Baker

ScheNgk, J. From tbe outset tbis proceeding bas posed two questions, tbe answers to wbicb are determinative of tbe controversy. Tbe first question is should tbe demurrers filed by tbe respondents be sustained upon tbe ground of a misjoinder of parties and of causes of action. Tbis question bas been previously answered in tbe negative. Moore v. Baker, supra. Tbe second question is should tbe demurrers filed by tbe respondents be sustained upon tbe ground tbat tbe petition fails to state facts sufficient to constitute a cause of action. "We are constrained to answer tbis question also in tbe negative. Tbe answer to tbe second question turns upon tbe construction of a portion of tbe will of tbe late S. R. Spruill admitted to probate in Book of Wills 6, page 179, office of tbe clerk of tbe Superior Court of Halifax County. Said portion of said will reads: “I give, devise and bequeath tbe whole of my estate, both real and personal, to my three daughters, Frances Elizabeth, Martha Norman and Susan Amelia during tbe time of their natural lives. No part of my estate is to be divided until tbe marriage of all of my three daughters, or in case of tbe death of one before marriage, then upon tbe marriage of tbe others, wben tbe last one shall be married, my estate shall be divided between my said daughters who may then be living, and tbe issue of such as may then be dead leaving issue, tbe said issue to take per stirpes and not per capita. Tbe share of each one of my said daughters shall upon her death go to her children and their heirs absolutely. Until tbe marriage of tbe last one of my said daughters my estate shall be held as common stock.” *136 The petitioners are grandchildren of the testator and children of the testator’s daughters mentioned in his will, and their spouses. The respondent Martha Norman (Pattie) Baker was a daughter of the testator and has died since the institution of this proceeding. The respondent Sallie Baker Everett is the daughter of the late Martha Norman (Pattie) Baker, and B. B. Everett is her husband. The -respondent Susie Hyman Bowden is a daughter of the late Frances Elizabeth (Spruill) Hyman and a granddaughter of the testator. The respondent John B. Cherry is a stranger to the blood of S. R. Spruill, the testator. The three daughters of the testator, Frances Elizabeth, Martha Norman and Susan Amelia, mentioned in the will, were all married before the institution of this proceeding, and all except Martha Norman died before the institution thereof. The parties to this proceeding include all of the children of the deceased daughters mentioned in the will of the testator. It is the contention of the respondents, appellants, that the parties' to this proceeding, children of the daughters of the testator, did not take under the will of their grandfather, S. R. Spruill, since such will created a fee tail title in their respective mothers, which was converted into a fee simple title by the statute (C. S., 1734, now GL S., 41-1), and therefore if such parties had any claim to the locus in quo it was by inheritance from their respective mothers, and the allegations in the petition that they took as tenants in common under and by virtue of said will were on its face erroneous — in other words, the word “children” was a word of limitation. However, with this contention we do not concur. We are of the opinion, and so hold, that the word “children” is a word of purchase. The will devises the real estate to the three daughters of the testator, naming them, “during the time of their natural lives” and provides that “the share of each one of my said daughters shall upon her death go to her children and their heirs absolutely.” The use of the word “children” following the life estate does not create a fee simple estate or a fee tail estate which would be converted by the statute into a fee simple estate. “When the devise is to one for life and after his death to his children or issue, the rule (in Shelley’s case) has no application, unless it manifestly appears that such words are used in the sense of heirs generally.” 25 A. & E., 651, and cases there cited; Brown, J., in Faison v. Odom, 144 N. C., 107, 56 S. E., 793. There is no indication here that the word “children” was used in the sense of heirs generally. It therefore appears that the parties to this proceeding took in remainder by purchase under the will of S. R. Spruill, the rule in Shelley’s case not applying, Bobbitt v. Pierson, 193 N. C., 437, 137 S. E., 160, and thereby became tenants in common and were authorized to have the land partitioned under the provisions of O. S., 3215, et seq., now G. S., 46-3, et seq. *137 It follows that the demurrer was properly overruled and the judgment of the Superior Court so holding should be affirmed, and it is so ordered. Affirmed.