Pitchford v. Limer

[15] Plaintiffs' Appeal. Hoke, J., after stating' tlie facts: The plaintiffs excepted to that portion of the judgment wbicli held that Thomas J. Pitchford, Jr., by the terms of the will, took an estate in fee simple under the Buie in Shelley’s Case. There is no error in this ruling. By the clause in question the property is given to Thomas J. Pitchford “for life, and after his death, to his heirs (lawful) forever.” Such words have been generally held to convey a fee simple,' and there is nothing in this will which makes or tends to make this an exception to the general rule. Edgerton v. Aycock, 123 N. C., 134; Wool v. Fleetwood, 136 N. C., 460; Cooper Ex parte, ibid., 130; Britt v. Lumber Co., ibid., 171. The court is referred by the plaintiff to the case of Bird v. Gilliam, 121 N. C., 326 (overruled in 123 N. C., 63, but not on this point), to Rollins v. Keel, 115 N. C., 68, and some other authorities of like kind, but these cases were decided on the ground that, by reason of certain qualifying and explanatory words or clauses of the will, the terms “heirs or heirs of the body” could not be given their simple and ordinary import, “carrying the estate to the whole line of heirs of the sort described to take in succession as such heirs,” but were to be considered in a different or more restricted sense, by which they were changed from words of limitation to words of purchase. There are no such qualifying or explanatory words in the clause we are now considering, and the general rule of construction must prevail. There is No Error. DEPENDANT'S APPEAL. Hoxe, J. The defendant excepted to that part of the judgment which holds that John 0. Pitchford took nothing under this clause of the will by reason of not complying with the condition imposed, and seeks to sustain his position on [16] tbe ground that the condition requiring in effect that John 0. Pitchford should remain upon the property is one in restraint of alienation, and therefore the condition is void and the estate is good. It is true that where an estate has vested, a condition in general restraint of alienation or entirely repugnant to its nature will be declared void. The doctrine is sound, but there is nothing in this case which permits its application. The will simply gave to John 0. Pitchford, wlio resided in Mississippi, the privilege of coming back to North Carolina and taking the property, or of remaining where he was and receiving other benefits under its terms. He preferred, it seems, to remain in Misissippi and elected to take other property bestowed upon him by the will. The estate, therefore, never vested in him. This would seem to be an executory devise dependent on a contingency which did not occur. Even if the qualifying clause should be correctly construed as a condition in restraint of alienation, it would be a condition precedent, and in such case the doctrine contended for by the defendant would have no application. Reeves on Real Property, secs. 418, 419 amd 420. The question is no longer of moment to the parties, as the opinion of the court on the plaintiffs’ appeal decides that the defendant is the owner of the property. There is No Error.