Summary
In Sanders v. Hyatt, 8 N.C. 247, "Devise to A., and if he dies without any lawful begotten heir of his body, then to his brother and sisters: Held, that the devise to A. is of an estate tail which, by the act of 1784, is converted into a fee simple, and the ulterior limitation is therefore void."
Summary of this case from Sharpe v. BrownOpinion
June Term, 1821.
Devise to A., and if he dies without any lawful begotten heir of his body, then to his brothers and sisters. Held, that the devise to A. is of an estate tail which, by the act of 1784, is converted into a fee simple, and the ulterior limitation is therefore void.
EJECTMENT, from GATES. The lessor of the plaintiff claimed title to the premises in dispute under the wills of Jesse Sanders and Lawrence Sanders, as follows: Jesse made his will, bearing date 8 August, 1811, and thereby devised the premises in the following words: "I give unto my son Lawrence the plantation where I now live and all the land adjoining thereto; and if he dies without any lawful begotten heir of his body, then to his brothers and sisters." Jesse died soon after, and Lawrence entered, and by his will devised the same land to the lessor of the plaintiff in fee and died, without having ever married, and leaving brothers and sisters under whom the defendant claimed and took possession.
By the direction of the court in the matter of law the jury found a verdict for the plaintiff, and the defendant moved for a new trial upon the ground that the limitation over to the brothers and sisters was good and sufficient to vest the title in them. But the court gave judgment for the plaintiff, and the defendant appealed.
Eure for the appellant.
Seawell for the appellee.
The clause in the will gives the land over if Lawrence should die without a lawfully begotten heir. Now he cannot die without heir as long as the persons live to whom the ulterior limitation gives it upon the happening of that event, for they may become heirs at law after the death of others more nearly related. The word heir, in the singular number, must therefore mean issue; and by that means the estate (248) first given in fee is turned into an estate tail, and by the act of 1784 is converted into a fee simple again in the first taker. The ulterior limitation is therefore void, and nothing passes by it.
By the Court, judgment
Affirmed.
Cited: Hollowell v. Kornegay, 29 N.C. 262; Weatherly v. Armfield, 36 N.C. 26; Buchanan v. Buchanan, 99 N.C. 311; Leathers v. Gray, 101 N.C. 164.