Elder v. . Johnston

Barnhill, J. The testatrix, in the second paragraph of her will heretofore quoted, made an unrestricted devise of her land to her six children to be equally divided among them, with the provision that if they could not agree upon a division then the land should be sold and the proceeds divided. Nothing else appearing, this constitutes a devise in fee. G. S. 31-38; Holt v. Holt, 114 N. C., 241; Fellowes v. Durfey, 183 N. C., 305, 79 S. E., 621; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; Barbee v. Thompson, 194 N. C., 411, 139 S. E., 838; Lineberger v. Phillips, 198 N. C., 661, 153 S. E., 118; Jolley v. Humphries, 204 N. C., 672, 169 S. E., 417; Hambright v. Carroll, 204 N. C., 496, 168 S. E., 817; Barco v. Owens, 212 N. C., 30, 192 S. E., 862; Heefner v. Thornton, 216 N. C., 702, 6 S. E. (2d), 506; Early v. Tayloe, 219 N. C., 363, 13 S. E. (2d), 609; Croom v. Cornelius, 219 N. C., 761, 14 S. E. (2d), 799. So then the question here is this: Does the provision contained in paragraph three so restrict or limit the estate thus devised that plaintiff cannot now convey a fee simple title to the share allotted to him in the division? The court below answered in the negative. In that conclusion we concur. *594 In this provision there is no limitation over. Nor is there any condition imposed upon the estate conveyed. The testatrix merely expresses a desire as to the course that shall be pursued in respect to a sale of the property in the event a devisee dies before his or her children become 21 years of age. “If this be regarded as a restraint on alienation it is void, Williams v. McPherson, 216 N. C., 565, 5 S. E. (2d), 830, and if merely the expression of a desire on the part of the testator, it is likewise ineffectual. Brooks v. Griffin, 177 N. C., 7, 97 S. E., 730.” Early v. Tayloe, supra. See also Lineberger v. Phillips, supra; Hambright v. Carroll, supra; Barco v. Owens, supra; Heefner v. Thornton, supra; in each of which the language used by the testator was much stronger than here and yet we held that it was not sufficient to delimit the fee theretofore devised. On this record the deed tendered by plaintiff conveys an indefeasible fee and defendant is under legal obligation to accept the same and to pay the agreed purchase price. Hence the, judgment below is Affirmed.