Christelle Lee TREMBLAY, Nellie Katherine Lee McGill, Louis L. Lee, Dorothy Lee Crigger, Jessie B. Lee and Ila Pearl Lee Joyce, Plaintiffs,
v.
Charles B. AYCOCK, Jr., and wife, Cleta Bayles Aycock, and Rachel Aycock White and husband, C. Howard White, Defendants.
No. 535.
Supreme Court of North Carolina.
January 29, 1965.*899 McLeod & McLeod, Dunn, for plaintiffs.
James M. Johnson, Bryan & Bryan and D. K. Stewart, Dunn, for defendants.
MOORE, Justice.
Determination of the ownership of the locus in quo requires interpretation of the provisions of the deed of 5 January 1921 from C. E. Lee to Lemon Lee.
We pass over, for the present, the paragraph immediately following the description. According to the naming, granting and habendum clauses the conveyance was "to Lemon Lee and the heirs of his body." This provision, standing alone, vested in Lemon Lee an estate tail, which was converted to a fee simple by statute, G.S. 41-1. Pittman v. Stanley, 231 N.C. 327, 56 S.E.2d 657; Bank of Pilot Mountain v. Snow, 221 N.C. 14, 18 S.E.2d 711; Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; Merchants' Nat. Bank v. Dortch & Hines, 186 N.C. 510, 120 S.E. 60; Parrish v. Hodges, 178 N.C. 133, 100 S.E. 256; Byrd v. Byrd, 176 N.C. 113, 96 S.E. 729; Blake v. Shields, 172 N.C. 628, 90 S.E. 764; Revis v. Murphy, 172 N.C. 579, 90 S.E. 573; Patterson v. Patterson, 2 N.C. 167. The covenants of warranty are "with Lemon Lee and the heirs of his body, if any." The words, "if any," do not affect the character of the estate, since there is no limitation over. Glover v. Glover, 224 N.C. 152, 29 S.E.2d 350.
Lemon Lee had no children at the time of the conveyance, and if the words "heirs of his body," as used in the naming, granting, habendum and warranty clauses, could be construed to mean "children," the estate of Lemon Lee would still have been a fee simple. "It is settled law with us that *900 when a conveyance is made to A and his children, if A has children when the deed is executed, he and they take as tenants in common. Cullens v. Cullens, 161 N.C. 344, 77 S.E. 228, L.R.A.1917B, 74. But if A has no children when the deed is executed, he takes an estate tail which, under our statute, is converted into a fee. G.S. § 41-1; Cole v. Thornton, 180 N.C. 90, 104 S.E. 74; Boyd v. Campbell, supra (192 N.C. 398, 135 S.E. 121)." Davis v. Brown, 241 N.C. 116, 84 S.E.2d 334. However, we have found no case, in which the conveyance is merely to A and the heirs of his body, and A has children at the time, that "heirs of the body" has been construed to mean "children." See Bank of Pilot Mountain v. Snow, supra; Revis v. Murphy, supra.
This brings us to a consideration of the provisions of the deed set out following the description and preceding the habendum clause: "The intent and purpose of this deed is to convy to Lemon Lee a life estate in 1/3 of the described lands in this deed, and at his death a fee simple estate to the heirs of his body if any, and in the event he has no heirs of his body in that event then to be equally divided among his brothers." Plaintiffs insist and contend that this language should be given effect, the words "heirs of his body" in this connection are not used in a technical sense, they mean "children," Lemon Lee acquired only a life estate, and plaintiffs having survived him acquired the remainder in fee. They cite Whitson v. Barnett, 237 N.C. 483, 75 S.E.2d 391; Gurganus v. Bullock, 210 N.C. 670, 188 S.E. 85; Lee v. Barefoot, 196 N.C. 107, 144 S.E. 547; Williams v. Sasser, 191 N.C. 453, 132 S.E. 278; Wallace v. Wallace, 181 N.C. 158, 106 S.E. 501. On the other hand, the defendant contends that said provisions following the description are repugnant to the estate created by the granting and habendum clauses and are surplusage and of no effect. She also contends that, if these provisions are given effect, Lemon Lee took a defeasible fee, and, issue having survived him, the fee became absolute and she is the owner. On the question of interpretation of these provisions she cites Turpin v. Jarrett, 226 N.C. 135, 37 S.E.2d 124; Paul v. Paul, 199 N.C. 522, 154 S.E. 825; Walker v. Butner, 187 N.C. 535, 122 S.E. 301; Willis v. Mutual Loan & Trust Co., 183 N.C. 267, 111 S.E. 163; Reid v. Neal, 182 N.C. 192, 108 S.E. 769; Smith v. Parks, 176 N.C. 406, 97 S.E. 209; Morrisett v. Stevens, 136 N.C. 160, 48 S.E. 661; Whitfield v. Garriss, 131 N.C. 148, 42 S.E. 568.
An interpretation of the language of the paragraph following the description is not necessary to a determination of the question involved. "When the granting clause in a deed to real property conveys an unqualified fee and the habendum contains no limitation on the fee thus conveyed and a fee simple title is warranted in the covenants of title, any additional clause or provision repugnant thereto and not by reference made a part thereof, inserted in the instrument as a part of, or following the description of the property conveyed, or elsewhere other than in the granting or habendum clause, which tends to delimit the estate thus conveyed, will be deemed mere surplusage without force or effect." Jeffries v. Parker, 236 N.C. 756, 757-758, 73 S.E.2d 783; Kennedy v. Kennedy, 236 N.C. 419, 72 S.E.2d 869; Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922; Oxendine v. Lewis, 252 N.C. 669, 114 S.E.2d 706. The granting and habendum clauses vested in Lemon Lee an unqualified fee, and the fee simple title is warranted. If plaintiffs' construction of the language following the description is correct, it is repugnant to the fee simple estate of Lemon Lee and tends to delimit it. That language is not by reference made a part of the granting, habendum or warranty clause. It is, therefore, surplusage without force or effect, if plaintiffs' interpretation of the provisions is correct. If defendant's interpretation is correct Lemon Lee had a fee simple title in any event. When rules of construction have been settled they should be observed and enforced. Davis v. Brown, supra.
*901 To the extent that Lee v. Barefoot, supra, is in conflict with this opinion, it is overruled.
Affirmed.
HIGGINS and RODMAN, JJ., dissent.