Sessoms v. . Sessoms

Hoke, J., after stating the case: The clause in question conferred on Joseph W. Sessoms an estate-tail, converted by our statute into a fee-simple, Eevisal, sec. 1578; and the Court below was correct, therefore, in holding that Joseph W. Sessoms acquired an absolute estate under the terms of his grandfather's will. This construction is not affected by the use of the word “lend.” This word is not infrequently used in wills as synonymous with “give” or “bequeath” or “devise.” There are instances where, from the context or exceptional use of the word, it has been allowed a different significance; but the general rule is, that unless it is manifest that the testator did not intend an estate to pass, the word “lend” *124 will pass the property to which it applies, in the same manner as if the word “give” or “devise” bad been used; and this, Are think, is the clear import of the word in the present case. Cox v. Marks, 21 N. C., 361; King v. Utley, 85 N. C., 59; Edgerton v. Aycock, 123 N. C., 134; Hinson v. Pickett, 9 S. C. Eq., 35. It is further urged on the part of the appellants that Joseph W. Sessoms only acquired a life-estate in the land by reason-of the limitation over to bis sister Martha and her lawful heirs; the argument being that this limitation over to Martha so qualified the devise to Joseph and “the lawful heirs of bis body forever,” that these words, “lawful heirs of bis body,” should not be received in their ordinary acceptation, “carrying the estate to the whole line of heirs of the sort described to take in succession as such heirs,”, but should be regarded in a qualified sense as a mere descriptio per-sonarían or particular description of individuals, by reference to whom, instead of their father Joseph, the succession should be regulated. But this, we think, is not the correct interpretation of this devise, and the position involves a misconception of the principle which is sought to be apjilied. The devise to Joseph and the heirs of bis body carries to him the entire estate, and the limitation over to “Martha and her laAvful heirs,” in case Joseph dies without lawful heirs of bis body, is not a qualification of the estate' of Joseph, but is a separate estate, wbicb, on a contingent event, would go to Martha direct from the testator under the doctrine of shifting uses, and by way of executory devise. Smith v. Brisson, 90 N. C., 284. Prior to an Act of 1827, Nevisal, sec. 1581, this limitation ever Avould have been too remote, as being against tbe policy of the law wbicb condemns perpetuities. But this statute, enacted for tbe purpose, established a rule of construction by *125 which this and similar limitations could very generally be upheld. The statute, however, which, as stated, only established a rule of construction by means of which the second estate could, under certain circumstances, be validated and upheld, did not, and did not intend to, change the nature of the first estate or make the second a qualification of the first. As said by Smithy C. J., in King v. Utley, supra: “The Act of 1827, which rendered effectual limitations in a deed or will made after 15 January, 1828, depending On .the death of a prior devisee, without heirs, heirs of the body, issue, issue of the body, children, offspring, or other relation which were previously held to be too remote and void, does not interfere with the application of the principle in determining the nature and extent of the precedent estate.” We hold, therefore, that Joseph W. Sessoms acquired afi absolute estate in the property, and that the same must be disposed of as directed by his will. In Bird v. Gilliam, 121 N. C., 328, cited and relied upon by plaintiff, and also, in Dawson v. Quinnerly, 118 N. C., 188, and Thompson v. Crump, 138 N. C., 32, it would seem that the Court was not sufficiently advertent to the principle here referred to; and, in eases like the present, where the terms of the devise carry the entire and same estate to the first devisee by the use of words creating an estate in fee or in fee-tail, general or special, with limitation over, the two last being made fee-simple estates by our statute, the correct doctrine is held in Morrisett v. Stevens, 136 N. C., 160, and Jones v. Ragsdale, 141 N. C., 200. These cases and that of Whitfield v. Garriss, 131 N. C., 148, reaffirmed on petition to rehear in 134 N. C., 24, are decisive of the one before us, and the judgment of the Court below is Affirmed.