Peyton v. . Smith

Clarkson, J. Item One of the will to be construed, which applies to real estate, is as follows: “I give and devise unto my wife, Emily Pey-ton, all of my lands and real estate of every description and wherever situated, to have and to hold unto her in fee simple right forever, with full power to assign away or bequeath as she may choose, and if there is any surplus at her death it is to be given to my heirs.” Item Two of the will to be construed, which applies to personal property, is as follows: “I give and bequeath unto my wife, Emily Peyton, all of my personal estate of every kind or description, to use or sell as she may choose, and if there is any surplus at her death I want it to be given to my heirs.” We think the court below construed both items of the will correctly. The present case is similar to that of Barco v. Owens, 212 N. C., 30. It is there said at pp. 31-32: “We agree with the trial court that the property in question was devised to Annie W. Owens ‘in fee simple forever’ in item two of the will, the conditions subsequent, in so far as they are repugnant to the fee originally devised, must be regarded as unwarranted restrictions on the jus dispondendi or the jus dividendi, and therefore void. . . . The general rule is that where real estate is devised in fee, or personalty bequeathed unconditionally, a subsequent clause in the will expressing a wish, desire, or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest, nor limit it to a life estate. . . . Conditions subsequent, in the absence of compelling language to the contrary, are usually eon- *158 strued against divestment. . . . Tbe absolute devise is permitted to stand, while tbe subsequent clause is generally regarded as precatory only.” Abundant authorities are cited to sustain tbe above rules of construction. Hampton v. West, 212 N. C., 315. For tbe reasons given, tbe judgment of tbe court below is Affirmed.