Jarman v. . Day

Allen, J. There is nothing in this will having a tendency to show that the testator did not use the word “land” in the sense of “give” or “devise,” and “the general rule is that unless it is manifest that the testator did not intend an estate to pass, the word ‘lend’ will pass the property to which it applies in the same manner as if the word ‘give’ or ‘devise’ had been used.” Sessoms v. Sessoms, 144 N. C., 124. The testator has then devised the land in controversy to the plaintiff, Rachel Jarman, then Foy, for life, and to the heirs of her body, which standing alone would be a fee simple under the rule in Shelley’s case, but with a limitation over to “John Shepard and his lawful heirs” in the event the plaintiff “dies leaving no lawful issue of her body,” which clearly makes the estate defeasible. Dawson v. Ennett, 151 N. C., 543; Smith v. Lumber Co., 155 N. C., 391; Rees v. Williams, 165 N. C., 203. *320 In the Smith case the devise was to six children in fee, with the limitation that “If any of my said children mentioned in this item of my said will should die without leaving lawful issue of his or her body surviving, or to be born within the period of gestation after his death,, then it is my will and desire that the part therein given and devised to said child shall descend to and upon the survivors of my said children mentioned in this item of this my will, or upon the lawful heirs who may be surviving any of my said children mentioned in this item,” and the-Court said, in construing the will: “Under several recent decisions of the Court, the children, under the third item of the will, took an estate-in fee simple, defeasible as to each on an 'uncertain event — in this case, ‘a dying without leaving lawful issue of his or her body surviving, or to-be born within the period of gestation after death.’ Perrett v. Byrd, 152 N. C., 220; Dawson v. Ennett, 151 N. C., 543; Harrell v. Hagan, 147 N. C., 111; Sessoms v. Sessoms, 144 N. C., 121; Whitfield v. Garris, 134 N. C., 24; Smith v. Brisson, 90 N. C., 284. And we have held, also, in these and other cases, that when a devise is limited over on a contingency of this kind, unless a contrary intent clearly appears in the will, the event by which each interest is to be determined must be referred, not to the death of the devisor, but to that of the several holders respectively.” Many other authorities could be cited to the same effect, but it is not necessary to do so. Affirmed.