Opinion
June Term, 1823.
1. A devise as follows, "The remainder of my plantation and lands that hath not been given away I leave to be equally divided between my three sons, A., B., and C., to them and their heirs forever, except either of the above said three should die without lawful heirs of their bodies; then my pleasure is that it should return to the other two, to them and their heirs forever": Held, that since the act of 1784, A., B., and C. take a fee simple and not an estate tail.
2. And upon the death of A., leaving issue, and the subsequent decease of B. without issue, B.'s share will be equally divided among his brothers and sisters of the half blood and whole blood, or the representatives of such.
EJECTMENT. The case as stated to this Court is as follows: The lessors of the plaintiff claimed title to the land in dispute under the will of Henry White, who devised to his three sons as follows, viz.: "The remainder of my plantation and lands that hath not been given away, I leave to be equally divided between my three sons, to wit: Solomon White, John White, and Caleb White, to them and their heirs forever, except either of the above said three should die without lawful heirs of their bodies, then my pleasure is that it should return to the other two, to them and their heirs forever."
Solomon White died first, leaving five children, Polly, Letitia, Malachi, Henry, and Solomon; Samuel Beasley, one of the lessors of the plaintiff, has since intermarried with Letitia, the daughter of Solomon White, deceased.
After Solomon's death, in 1805 or 1806, Caleb White died intestate and without issue, leaving the following brothers and sisters or their representatives, viz.: the children of Henry White, a half brother, Mary Williams, Lydia Beasley, Letitia Tolar, the heirs of Solomon White, Miriam Cato, John White, Nancy Taylor and Julian Jones, his heirs at law.
(438) Upon the death of Caleb White without issue, his third part of the land in said devise contained was divided by order of Currituck County court among his heirs at law before named.
The defendant, Whitehurst, purchased the shares laid off in the division to Henry White's children to Letitia Tolar and Nancy Taylor, the heirs of the half brothers and sisters of Caleb White, deceased, it being three-ninths of the whole, and of the part so purchased the defendant has possession; the other devisee, John White, is still living, and the lessors of the plaintiff are entitled (if to anything) to one-thirtieth.
The part of Henry White's will which forms part of the case would, before the act of 1784, have conveyed to his three sons estates tail in the land devised, which by that act are converted into fees simple. The opposite claimants of the part devised to Caleb White are his brothers and sisters of the whole blood and representatives of deceased brothers and sisters on one side and the representatives of his half brother on the other side. It is altogether unnecessary to consider in this case whether Caleb acquired the land by descent or purchase, because there is but one side of half blood, and they are of the paternal side. So that in either case they or their representatives of equal degree with the whole blood are entitled to the inheritance under the third section of the act and its provisos, and the proviso of the second section. It follows that the representatives of Henry White, the deceased half brother of Caleb, are entitled to the share which their father might have claimed had he lived, and that the verdict is wrong in having excluded them. There must consequently be a new trial.
In this opinion HALL and HENDERSON, JJ., concurred.
PER CURIAM. New trial.
Cited: Buchanan v. Buchanan, 99 N.C. 311.
(439)