MANGUM et al.
v.
WILSON et ux.
No. 740.
Supreme Court of North Carolina.
April 9, 1952.*21 Fuller, Reade, Umstead & Fuller, and A. H. Graham, Jr., all of Durham, for defendants, appellants.
W. J. Brogden, Jr., Durham, for plaintiffs, appellees.
DENNY, Justice.
It appears from the agreed statement of facts that the plaintiffs, other than Leo Mangum, include all of the grandchildren of P. J. Mangum, the testator, together with the spouse of each grandchild who is married. Each plaintiff is more than 21 years of age and is under no disability. A number of these grandchildren have children who are great-grandchildren of the testator, but no great-grandchild of P. J. Mangum, deceased, is living whose parent of the testator's blood is not also living. Therefore, the appellants concede that the plaintiffs, other than Leo Mangum, are seized in fee simple of an undivided four-fifths interest in the property they have contracted to sell.
The only question for determination is whether Leo Mangum, the sole surviving child of the testator, can convey a good and indefeasible fee-simple title to the remaining one-fifth undivided interest in the property. This question necessitates an examination of the provisions of the testator's will in order to ascertain his intent. And his intent should be given effect, unless contrary to some rule of law or at variance with public policy. Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625, and cited cases.
It appears that the testator assumed that his widow, Sallie Anne Mangum, to whom he gave all his property, both real and personal, during her natural life, would not live until their youngest child had attained the age of 21 years. This interpretation is supported by the language in the will as follows: "* * * at her death (referring to the death of his wife) my will is for all my property, both real and personal, to remain as it is until the youngest child, Sallie Jackson Mangum, becomes twentyone years of age, and then Lula and Leo Mangum is to have $250.00 each first and the remainder to stand as it is all together, and the clear rents to be equally divided among all my five children, except they all should agree to sell some part of it."
This appeal requires an interpretation of the following portion of the will: "* * * remainder to stand as it is all together, and the clear rents to be equally divided among all my five children, except they all should agree to sell some part of it. If my children marry and die leaving children, their part shall go to their children. If any of my children die without heirs, their part shall return to the Mangum bodily heirs."
Since the enactment of Section 12, Chapter 22 of the Public Laws of 1784 (Potter's Code, Chapter 204, Section 12), now G.S. § 31-38, when real estate is devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express 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. Lineberger v. Phillips, 198 N.C. 661, 153 S.E. 118; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626; Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838; Patrick v. Morehead, 85 N.C. 62. "Indeed, it is generally necessary that restraining expressions should be used to confine the gift to the life of the legatee or devisee." Holt v. Holt, 114 N.C. 241, 18 S.E. 967, 968; Lineberger v. Phillips, supra.
In the case of Patrick v. Morehead, supra, Ashe, J., in speaking for the *22 Court, quoted with approval from the opinion in the New York case of Jackson v. Robins, 16 Johns. 537, as follows: "We may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee, and the only exception to the rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposition." It is also generally held that a devise of the use, income, rents, and profits of property, amounts to a devise of the property itself, and will pass the fee, unless the will shows an intent to pass an estate of less dignity. Burcham v. Burcham, 219 N.C. 357, 13 S.E.2d 615; Schwren v. Falls, 170 N.C. 251, 87 S.E. 49, L.R.A.1916B, 1235; Perry v. Hackney, 142 N.C. 368, 55 S.E. 289, 19 Am. Jur., Estates, section 24, page 484.
"A devise generally or indefinitely with power of disposition creates a fee." Hardee v. Rivers, 228 N.C. 66, 44 S.E.2d 476, 477; Roane v. Robinson, supra; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892.
Consequently, in view of the rule of construction laid down in G.S. § 31-38, and our decisions pursuant thereto, together with the general rule that a devise of the use, income, rents, and profits of property, is tantamount to a devise of the property itself, unless the will shows in plain and express words that the testator intended to convey an estate of less dignity, we hold that P. J. Mangum devised his property to his five children to be held as tenants in common in fee simple. Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368; Croom v. Cornelius, 219 N.C. 761, 14 S.E.2d 799; Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817. We do not think the expression "except they all should agree to sell some part of it," was intended to be a restriction upon the power of alienation or an indication of the testator's intent to vest in his children less than a fee-simple estate. Having stated in his will, "* * * remainder to stand as it is all together, and the clear rents to be equally divided among all my five children," we think the reference to a sale of some part of his estate was merely a recognition of the fact that it might not be practical or desirable for his children to keep the entire estate intact and retain title to all of it. If, however, he intended it to be a limitation upon the right of alienation, or partition, we hold it to be void. Johnson v. Gaines, 230 N.C. 653, 55 S.E.2d 191; Croom v. Cornelius, supra; Barco v. Owens, 212 N.C. 30, 192 S.E. 862; Williams v. Sealy, 201 N.C. 372, 160 S.E. 452; Combs v. Paul, 191 N.C. 789, 133 S.E. 93; Carroll v. Herring, supra; Schwren v. Falls, supra; Wool v. Fleetwood, 136 N.C. 460, 48 S.E. 785, 67 L.R.A. 444; Latimer v. Waddell, 119 N.C. 370, 26 S.E. 122, 3 L.R.A.,N.S., 668.
Furthermore, it would make no difference in the instant case were we to hold that Leo Mangum has only a life estate with power to sell or a defeasible fee with such power, Mabry v. Brown, 162 N.C. 217, 78 S.E. 78, since in either event should he die leaving issue, such issue would be estopped from claiming any interest in this particular property by the warranty in his deed to these defendants. Buffaloe v. Blalock, supra; Croom v. Cornelius, supra; Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485; Shenandoah Insurance Co. v. Sandridge, 216 N.C. 766, 6 S.E.2d 876; Woody v. Cates, 213 N.C 792, 197 S.E. 561; Williams v. Norfolk-Southern R. Co., 200 N.C. 771, 158 S.E. 473. Likewise, since all the Mangum bodily heirs who would hold a contingent interest in Leo Mangum's onefifth undivided interest, in his father's estate, under such construction, are parties to this proceeding and have executed a deed to the premises involved, should Leo Mangum die without leaving issue, they, as well as those claiming under them, would be estopped by the warranty in their deed from claiming any interest in the premises conveyed to the defendants. Buffaloe v. Blalock, supra; Croom v. Cornelius, supra; Thames v. Goode, supra; Woody v. Cates, supra; Grace v. Johnson, 192 N.C. 734, 135 S.E. 849; James v. Griffin, 192 N.C. 285, 134 S.E. 849; Williams v. Biggs, 176 N.C. 48, 96 S.E. 643; Hobgood v. Hobgood, 169 N.C. 485, 86 S.E. 189.
The judgment of the court below is
Affirmed.