Therrell v. . Clanton

Connor, J. In support of their assignments of error on their appeal to this Court from the judgment of the Superior Court in this action, the plaintiffs contend that under the deed executed by Mary E. Parker, dated 9 June, 1888, upon the death of Prances E. Gilmore leaving surviving her no child begotten upon her body by her husband, ~W. H. Gilmore, an estate in fee simple in the land described in the complaint vested in the heirs of Mary E. Parker, deceased, living at the death of Frances E. Gilmore, as a remainder created by said deed, and that all the evidence at the trial showed that the plaintiffs and those under whom they claim are such heirs of Mary E. Parker, deceased. This contention cannot be sustained. The provision in the deed that “in the event Frances E. Gilmore should have no children of her body by the said W. H. Gilmore, then the estate in fee simple forever to the right heirs of Mary E. Parker,” does not create a contingent remainder. At most, it creates a reversion in the grantor, Mary E. Parker, which was subsequently conveyed by her to W. C. Maxwell, under whom the defendants claim. *394 In King v. Scoggin, 92 N. C., 99, it is said: “It is true, remainders are created by deed or writing, but the estate is sometimes created so that what is called a remainder is, in effect, only a reversion; as, for instance, where an estate is given to one for life, remainder to the right heirs of the grantor (2 Washburn Beal Property, 692; Burton Beal Property, 51), and this must be the kind of remainder classed with reversions which go to the donor or to him who can make himself heir to him; but it cannot be that when the owner in fee conveys it by deed or will, to one for life and after his death to another in remainder in fee, the estate could under any circumstances return to the donor, for he has parted with all his interest, and under the rule as laid down in Lawrence v. Pitt, 46 N. C., 344, the person who claims the estate must make himself heir to the remainderman, who is the first purchaser of the remainder, because being the first purchaser of the remainder, he thereby becomes a new stirpes of the inheritance.” See Grantham v. Jinnette, 177 N. C., 229, 98 S. E., 724; and Thompson v. Batts, 168 N. C., 333, 84 S. E., 347. The plaintiffs claim the land described in the complaint as heirs of Mary E. Parker. They therefore claim by descent and not by purchase. Yelverton v. Yelverton, 192 N. C., 614, 135 S. E., 632. As their ancestor, Mary E. Parker, before her death, had conveyed the land to W. 0. Maxwell, by deed dated 1 September, 1904, and duly recorded in the office of the register of deeds of Mecklenburg County on 3 September, 1904, the plaintiffs are hot now the owners of said land and entitled to its possession. There was no error in the refusal of the trial court to instruct the jury as requested by the plaintiffs, or in the instruction given by the court to the jury. The judgment is affirmed. No error.