LANGSTON et ux.
v.
WOOTEN et al.
No. 388.
Supreme Court of North Carolina.
May 24, 1950.*607 George B. Greene, Kinston, for plaintiffs.
Thomas J. White, Kinston, for defendants.
DENNY, Justice.
The appellants raise the following questions: (1) Is the language of the will under which the plaintiff, J. C. Langston, Jr., claims title, sufficient to devise to said plaintiff the fee simple title to a portion of testator's land? (2) If so, does the provision that the devisees shall "have no right to sell it, except to each other" constitute a valid limitation upon the right of alienation?
The first question, when considered in light of the provisions of G.S. § 31-38, in our opinion, must be answered in the affirmative. The statute provides: "When real estate shall be 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." Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d *608 368; Elder v. Johnston, 227 N.C. 592, 42 S.E.2d 904; Williams v. McPherson, 216 N.C. 565, 5 S.E.2d 830; Henderson v. Western Carolina Power Co., 200 N.C. 443, 157 S.E. 425, 80 A.L.R. 497; Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838.
We find nothing in the testator's will to indicate an intent to limit the estate his children would take. It is true the will is inaptly drawn. However, there is not only an expressed intent that his children should have the land, but that they should keep it among themselves. If he had not intended to devise the property to them, his attempt to restrain its alienation would be illogical. Moreover, he contemplated and directed a division of the farm land when his children became of age, or earlier, in the event his wife should die before the children became of age.
There seems to be some doubt on the part of the appellants as to the validity of the partition proceeding, since it took place before the plaintiff, J. C. Langston, Jr., became 21 years of age.
We are mindful of what was said in Greene v. Stadiem, 198 N.C. 445, 152 S.E. 398, with respect to the proper time for instituting partition proceedings, where the devisor fixes the time for a division. In Greene v. Stadiem, however, contingent remaindermen were involved. But no contingent interest was involved in the special proceeding referred to herein, and all parties who could possibly have been interested in the partition of the land were parties thereto, and all were sui juris except the plaintiff, J. C. Langston, Jr., who was represented by his next friend. Furthermore, J. C. Langston, Jr., became 21 years of age on 30 October, 1937, and ratified and confirmed the division of the property as made, by entering into the possession and occupancy of the 71 acre tract of land allotted to him in such proceeding. He would now be estopped from challenging the validity of the proceeding.
On the other hand, conceding, but not deciding, the will to be insufficient to devise the lands in fee to the children of the testator, then they would have taken the fee by inheritance, subject only to the dower interest of the widow. Consequently, the widow now being dead and the daughter of the testator and her husband having conveyed all their right, title and interest in and to the testator's estate to her three brothers, these brothers would be seized and possessed of the fee simple title to the premises. Hales v. Renfrow, 229 N.C. 239, 49 S.E.2d 406.
The second question must be answered in the negative. The right of alienation is regarded as an inseparable incident to an estate in fee; and it has been uniformly held by this Court that an absolute restraint upon the free and unlimited power of alienation, annexed to a grant or devise in fee, is void. Johnson v. Gaines, 230 N.C. 653, 55 S.E.2d 191; Buckner v. Hawkins, 230 N.C. 99, 52 S.E.2d 16; Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641; Douglass v. Stevens, 214 N.C. 688, 200 S.E. 366; Norwood v. Crowder, 177 N.C. 469, 99 S.E. 345. Neither is the rule changed in this respect when the right of alienation is permitted among but limited to the heirs or devisees of the testator. Early v. Tayloe, 219 N.C. 363, 13 S.E.2d 609; Williams v. McPherson, supra; Brooks v. Griffin, 177 N.C. 7, 97 S.E. 730.
The judgment of the court below is
Affirmed.