Williams v. . McPherson

Winborne, J. The judgment below is in keeping with well settled principles of law. The statute, C. S., 4162, provides that when real estate is devised to a person, “the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and expressed words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.”’ Under this statute an unrestricted devise of real estate vests the fee. Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; Lineberger v. Phillips, 198 N. C., 661, 153 S. E., 118; Hambright v. Carroll, 204 N. C., 496, 168 S. E., 817. Under this statute, as applied in decisions of this Court, the words in the instant case, “I leave to my son William E. Williams . . the original part of my residence, No. 218 Poindexter Street, now occupied by myself,” standing alone, constitute an unrestricted devise to William F. Williams. The word “leave” in the connection there used means “to bequeath or devise.” Webster so defines it, and illustrates the meaning as: “he left a legacy to his niece.” Here this is the natural and customary meaning. Such meaning is to be given the word, unless it clearly appears that some other permissible meaning is intended. Goode v. Hearne, 180 N. C., 475, 105 S. E., 5. The principle that a restraint upon alienation is contrary to public policy and void is well recognized and applied in numerous decisions of this Court, among which are these: Dick v. Pitchford, 21 N. C., 480; Wool v. Fleetwood, 136 N. C., 460, 48 S. E., 785; Christmas v. Winston, 152 N. C., 48, 67 S. E., 58; Trust Co. v. Nicholson, 162 N. C., 257, 78 S. E., 152; Lee v. Oates, 171 N. C., 717, 88 S. E., 889; Brooks v. Griffin, 177 N. C., 7, 97 S. E., 730; Stokes v. Dixon, 182 N. C., 323, 108 S. E., 913; Pilley v. Sullivan, 182 N. C., 493, 109 S. E., 359. In the case in hand, the clause “said property never to be sold, bought or transferred only to Williams’ heirs” is such a restraint upon alienation as makes it void as contrary to public policy. Therefore, stripped of this void clause, the remaining words vest in William E. Williams an estate in fee. The judgment below is Affirmed.