Caudle v. . Caudle

Clark, C. J. Tbe testator devised to bis daughter Sarab “60 acres of land”; to bis daughter Eliza “40 acres”; to bis daughter Henrietta “40 acres”; to bis son S. J. “125 acres”; to . bis son R. E. “82 acres,” tbe latter to include “tbe old borne place where I now live.” It was admitted in tbe trial below that tbe testator died seized and possessed of 347 acres of land. Tbe plaintiffs are tbe other heirs of tbe testator, who have brought this proceeding against tbe devisees above named, alleging that tbe testator left 347 acres of land, and asking for a partition of tbe same among themselves and tbe defendants in equal shares. Tbe clerk adjudged' that tbe defendants were sole tenants in common of said 347 acres under tbe will. On appeal, this judgment was affirmed by bis Honor, and tbe plaintiffs appealed. Tbe court was correct in bolding that tbe devisees were tenants in common of tbe 347 acres. If tbe testator bad devised one-fifth of bis land to each of said devisees, it could not be questioned that they were entitled to take as tenants in common and could make partition between themselves, or apply to tbe courts to order partition, and that one-fifth be set off and allotted to each devisee. It being admitted here that tbe testator left 347 acres of land, it follows that instead of giving one-fifth thereof to each of said devisees, tbe testator devised 40-347ths to one; 40-347ths to another; 60-347ths to another; 125-347ths to another; and 82-347ths to tbe other. Tbe testa *55 tor left it to the said devisees to use their own pleasure as to making partition among themselves in that proportion, with no restriction save that one of the devisees named should have the home place on his 82 acres. It may be that these devisees may prefer to continue as ten-) ants in common, or they may set apart and allot in severalty to each the specified number of acres, if they can agree. If they cannot do so, then they may apply to the court to appoint, commissioners to make and allot to each his share in severalty. The plaintiffs are the other heirs of the testator for whom other provision is made in the will. They have no interest in said 347 acres of land, and their petition for partition thereof was properly denied. In Harvey v. Harvey, 72 N. C., 570, the testator devised to one son 250 acres of land and to another 250 acres of land, and then provided' that the remainder should be sold. The court held that it was competent to appoint commissioners to allot to each son 250 acres of land, so as to make that certain which before was uncertain. The present is a much stronger ease in favor of the devisees, as the testator had only 347 acres and the acreage devised to the five devisees named foots up exactly 347. It thus appears that the title to the entire tract went to the five devisees as tenants in common, and that it is for them, should they wish to make partition. This ease was cited with approval in Jones v. Robinson, 78 N. C., 400, and Wright v. Harris, 116 N. C., 465. In the latter case the testator devised 50 acres of land to a family servant, and it was held that he was entitled to have 50 acres of land allotted to him by metes and bounds out of the 1,200 acres left by the testator. This decision was reaffirmed in Harris v. Wright, 118 N. C., 423. Parol evidence of surrounding circumstances is competent in the interpretation of a deed or will to enable the court to ascertain the intention of the parties. Ward v. Gay, 137 N. C., 397; Boddie v. Bond, 154 N. C., 359. But in this case it is not even necessary to do this. It is admitted that the testator owned 347 acres only, and the will shows on its face that he devised that number of acres, in proportions stated, to five of his chil *56 dren. Tbe will specifies that one of tbe devisees is to bave tbat part of tbe tract on wbieb tbe “borne place stood,” and tbe residuary clause shows tbat tbe testator understood tbat be bad disposed of all bis realty. Tbe judgment of tbe court below is Affirmed.