Williams v. . Sealy

Stacy, C. J. On the hearing, the title offered was properly made to depend upon the construction of the following limitation in the will of Miss A. E. "Williams: *373 “Tbe children of B. P. Williams, Tait, Frank, Roland, Dorcas and Lula, to have my land after tbe lease expires on it and for it not to sell under fifty years after my death.” It is conceded that if tbe children of B. P. Williams take a fee, with immediate power of alienation, in tbe land devised to them under tbe above clause in tbe will of Miss A. E. Williams, then tbe deed tendered is sufficient, and tbe judgment for tbe plaintiffs is correct, but defendant questions tbe immediate power of alienation because of tbe limitation against selling under fifty years from tbe 'death of tbe testatrix. Tbe devise to tbe children of B. P. Williams is in fee, and it is tbe bolding with us that an absolute restraint on alienation, though for a limited time, annexed to a grant or devise in fee, is void. Combs v. Paul, 191 N. C., 789, 133 S. E., 93; Schwren v. Falls, 170 N. C., 251, 87 S. E., 49; Christmas v. Winston, 152 N. C., 48, 67 S. E., 58; Foster v. Lee, 150 N. C., 688, 64 S. E., 761; Wool v. Fleetwood, 136 N. C., 460, 48 S. E., 785; Latimer v. Waddell, 119 N. C., 370, 26 S. E., 122. Tbe judgment of tbe Superior Court, therefore, striking out tbe purported restraint on alienation and declaring tbe plaintiffs tbe owners in fee of tbe premises, with immediate power to dispose of tbe same, must be upheld. Jus disponendi is an incident to tbe ownership of property in fee. Affirmed.