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228 N.C. 275

45 S.E.2d 368

Taylor v. . Taylor

Supreme Court of North Carolina

Decided December 10, 1947

Supreme Court of North Carolina · decided 1947-12-10

Key passage — most relied on by later courts

“"The general rule is that where real estate is devised in fee, or personalty bequeathed unconditionally, a subsequent clause in the will expressing a wish, desire, or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest, nor limit it to a life estate. * * * Conditions subsequent, in the absence of compelling language to the contrary, are usually construed against divestment. * * * The absolute devise is permitted to stand, while the subsequent clause is generally regarded as precatory only."”

quoted by 3 later decisions, including Olive v. Biggs, 114 N.C. App. 447 - Coble v. Patterson

“Where real estate is given absolutely to one person with a gift-over to another of such portion as may remain un-disposed of by the first taker at his death, the gift-over is void as repugnant to the absolute property first given; and it is also established law that where an estate is given to a person generally or indefinitely with a power of disposition, or to him, his heirs and assigns forever, it carries a fee, and any limitation over or qualifying expression of less import is void for repugnancy. The only exception to such a rule is where the testator gives to the first taker an estate for life only, by certain and express terms. . . .”

quoted by 1 later decision, including Adcock v. Perry

Good law ✅— No negative treatment on recordhow we know

Decided 1947-12-10

How this case has been cited

Cited by 38 later decisions — most recently April 1994 · most notably Woodard v. Clark (1951), Olive v. Biggs (1970)

36 state decisions

160194719501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Stacy, C. J.

¶1 "What estate is devised in Item 3 of the Will of Lillie Taylor Jordan? The Superior Court adjudged a fee, and we approve.

¶2 It is provided by G. S., 31-38, that when real estate is devised to any person, the same shall be held and construed a devise in fee simple, unless such devise shall, in plain and express language 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. Elder v. Johnston, 227 N. C., 592; Early v. Tayloe, 219 N. C., 363, 13 S. E. (2d), 609. Consequently, an unrestricted or indefinite devise of real property is regarded *277 as a devise in fee simple. Heefner v. Thornton, 216 N. C., 702, 6 S. E. (2d), 506; Barco v. Owens, 212 N. C., 30, 192 S. E., 862. And so,'also, is a devise generally to one person with limitation over to another of “whatever is left” at the death of the first taker. Patrick v. Morehead, 85 N. C., 62; Carroll v. Herring, 180 N. C., 369, 104 S. E., 892. In the ease last cited, it is said: “Where real estate is given absolutely to one person, with a gift over to another of such portion as may remain undis-posed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given.” Accordant: Croom v. Cornelius, 219 N. C., 761, 14 S. E. (2d), 799; Hambright v. Carroll, 204 N. C., 496, 168 S. E., 817; Lineberger v. Phillips, 198 N. C., 661, 153 S. E., 118; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; Fellowes v. Durfey, 163 N. C., 305, 79 S. E., 621; Holt v. Holt, 114 N. C., 241, 18 S. E., 967.

¶3 Indeed, it is a general rule of testamentary construction that an unrestricted devise of real estate carries the fee, and a subsequent clause in the will expressing a wish, desire, or even direction for the disposition of what remains at the death of the devisee, is not allowed to defeat the devise, nor limit it to a life estate. Barco v. Owens, supra. It is understood, of course, that this rule, as well as all rules of construction, must yield to the paramount intent of the testator as gathered from the four corners of the will. Jolley v. Humphries, 204 N. C., 672, 169 S. E., 417. Such was the reason for taking the case of Hampton v. West, 212 N. C., 315, 193 S. E., 290, out of the general rule; and' for like reason it is distinguishable from the present case.

¶4 The construction of the subject will, in accordance with the general rule, is approved.

¶5 Affirmed.

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