{ "id": 8550635, "name": "JAMES L. MOORE, ELIZABETH EVA MOORE ALLEY and MARY M. OLIPHANT v. BELLE ALLISON TILLEY and husband, ROBERT TILLEY, GERTA WOLFE and husband, J. DOUGLAS WOLFE, ROSEMARIE MOORE CRAWFORD and husband, CHARLES WILLIAM CRAWFORD, EVA HARRIS MOORE, widow, JOAN MOORE DOUGLAS and husband, RICHARD DOUGLAS, JULIAN CLARK MOORE, unmarried minor, BILLIE CAROLYN MOORE, single, CHARLES P. MOORE, JR. and wife, LORRAINE MOORE, JOHN LEE MOORE and wife, MARILYN MOORE, HILDA MOORE, widow, J. FRANK MOORE, JR., and wife, MRS. J. FRANK MOORE, JR., J. THOMAS MOORE and wife, MRS. J. THOMAS MOORE, ELSIE MOORE VANN and husband, HERBERT W. VANN, BETTY MOORE WILLIAMS and husband, MALLORY HOWARD WILLIAMS, HARRIET NAN MOORE, single minor, MARY MOORE JENNETTE and husband, CARTER JENNETTE, BESSIE MOORE CARTER, widow, GRANT CARTER and wife, BARBARA CARTER, BERTHA M. THOMAS and husband, PERCY THOMAS and EVA D. MOORE, widow", "name_abbreviation": "Moore v. Tilley", "decision_date": "1972-08-02", "docket_number": "No. 7222SC368", "first_page": "378", "last_page": "384", "citations": [ { "type": "official", "cite": "15 N.C. App. 378" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "182 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567058 ], "opinion_index": 0, "case_paths": [ "/nc/279/0341-01" ] }, { "cite": "44 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276249 ], "opinion_index": 0, "case_paths": [ "/nc/44/0290-01" ] }, { "cite": "66 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277120 ], "opinion_index": 0, "case_paths": [ "/nc/66/0327-01" ] }, { "cite": "23 S.E. 972", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "118 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652658 ], "opinion_index": 0, "case_paths": [ "/nc/118/0138-01" ] }, { "cite": "47 S.E. 415", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "135 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658689 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/135/0164-01" ] }, { "cite": "90 S.E. 803", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "172 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255245 ], "opinion_index": 0, "case_paths": [ "/nc/172/0671-01" ] }, { "cite": "130 S.E. 714", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611482 ], "opinion_index": 0, "case_paths": [ "/nc/190/0620-01" ] }, { "cite": "158 S.E. 400", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625981 ], "opinion_index": 0, "case_paths": [ "/nc/200/0746-01" ] }, { "cite": "62 S.E. 2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612551 ], "opinion_index": 0, "case_paths": [ "/nc/232/0669-01" ] }, { "cite": "35 S.E. 811", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "126 N.C. 405", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660266 ], "opinion_index": 0, "case_paths": [ "/nc/126/0405-01" ] }, { "cite": "93 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274058 ], "opinion_index": 0, "case_paths": [ "/nc/93/0442-01" ] }, { "cite": "68 S.E. 929", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N.C. 49", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271231 ], "opinion_index": 0, "case_paths": [ "/nc/153/0049-01" ] }, { "cite": "39 S.E. 638", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "129 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658787 ], "opinion_index": 0, "case_paths": [ "/nc/129/0052-01" ] }, { "cite": "32 S.E. 492", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "124 N.C. 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658269 ], "opinion_index": 0, "case_paths": [ "/nc/124/0161-01" ] }, { "cite": "104 S.E. 897", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "180 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653720 ], "opinion_index": 0, "case_paths": [ "/nc/180/0393-01" ] }, { "cite": "85 S.E. 213", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "169 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656638 ], "opinion_index": 0, "case_paths": [ "/nc/169/0075-01" ] }, { "cite": "84 S.E. 280", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "168 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658936 ], "opinion_index": 0, "case_paths": [ "/nc/168/0271-01" ] } ], "analysis": { "cardinality": 634, "char_count": 14052, "ocr_confidence": 0.552, "pagerank": { "raw": 3.0344261050623974e-07, "percentile": 0.8548392203560903 }, "sha256": "997f6abdce3dd45752a932bfcc526a5caa1e5f4e77e1d2707285a10111d05dd3", "simhash": "1:121094681d280eea", "word_count": 2524 }, "last_updated": "2023-07-14T17:26:51.335715+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Mallard and Judge Campbell concur." ], "parties": [ "JAMES L. MOORE, ELIZABETH EVA MOORE ALLEY and MARY M. OLIPHANT v. BELLE ALLISON TILLEY and husband, ROBERT TILLEY, GERTA WOLFE and husband, J. DOUGLAS WOLFE, ROSEMARIE MOORE CRAWFORD and husband, CHARLES WILLIAM CRAWFORD, EVA HARRIS MOORE, widow, JOAN MOORE DOUGLAS and husband, RICHARD DOUGLAS, JULIAN CLARK MOORE, unmarried minor, BILLIE CAROLYN MOORE, single, CHARLES P. MOORE, JR. and wife, LORRAINE MOORE, JOHN LEE MOORE and wife, MARILYN MOORE, HILDA MOORE, widow, J. FRANK MOORE, JR., and wife, MRS. J. FRANK MOORE, JR., J. THOMAS MOORE and wife, MRS. J. THOMAS MOORE, ELSIE MOORE VANN and husband, HERBERT W. VANN, BETTY MOORE WILLIAMS and husband, MALLORY HOWARD WILLIAMS, HARRIET NAN MOORE, single minor, MARY MOORE JENNETTE and husband, CARTER JENNETTE, BESSIE MOORE CARTER, widow, GRANT CARTER and wife, BARBARA CARTER, BERTHA M. THOMAS and husband, PERCY THOMAS and EVA D. MOORE, widow" ], "opinions": [ { "text": "BROCK, Judge.\nThe facts are not in dispute. We are confronted with the necessity of determining the intent of Margaret Guy Moore at the time she executed her will in 1906. Only the \u201cFirst\u201d and \u201cSecond\u201d items of the will are involved.\nA provision in a will that a devisee shall support a named person is perfectly reasonable and consistent with the policy of the law, and is constantly upheld. In North Carolina, as in most states, provisions relating to support or service, if regarded as conditions, are construed as subsequent rather than precedent whenever possible. 5 Bowe-Parker Revision, Page on Wills, \u00a7 44.22. Because of the language used, a provision in a will for support of a named person has been construed to create an estate on condition subsequent, as in Brittain v. Taylor, 168 N.C. 271, 84 S.E. 280, and in Huntley v. McBrayer, 169 N.C. 75, 85 S.E. 213. However, conditions subsequent are not favored in the law and are strictly construed against forfeiture. Hinton v. Vinson, 180 N.C. 393, 104 S.E. 897. A provision in a will for support of a named person, depending upon the language used, may be construed as constituting a personal covenant, as in Perdue v. Perdue, 124 N.C. 161, 32 S.E. 492, in Ricks v. Pope, 129 N.C. 52, 39 S.E. 638, and in Lumber Co. v. Lumber Co., 153 N.C. 49, 68 S.E. 929. Or it may be construed as constituting a charge upon only the rents and profits from the lands, as in Gray v. West, 93 N.C. 442, and in Wall v. Wall, 126 N.C. 405, 35 S.E. 811. However, in a majority of the cases the provision for support has been construed as constituting an equitable lien or charge upon the land itself which will folllow the land into the hands of purchasers. Minor v. Minor, 232 N.C. 669, 62 S.E. 2d 60; Marsh v. Marsh, 200 N.C. 746, 158 S.E. 400; Cook v. Sink, 190 N.C. 620, 130 S.E. 714; Bailey v. Bailey, 172 N.C. 671, 90 S.E. 803; Helms v. Helms, 135 N.C. 164, 47 S.E. 415; Outland v. Outland, 118 N.C. 138, 23 S.E. 972; Laxton v. Tilly, 66 N.C. 327; Woods v. Woods, 44 N.C. 290.\nThe reasons for treating provisions for support as an equitable lien or charge upon the land rather than a condition subsequent, or a personal covenant, or a charge upon only the rents and profits, is aptly stated in Helms v. Helms, 135 N.C. 164, 47 S.E. 415, as follows:\n\u201cThe difficulties which readily occur in treating provisions of this kind as conditions are numerous. The uncertainty into which titles would be thrown is a strong reason for construing provisions for support as covenants and not conditions is recognized by the courts: To treat them as mere personal covenants, having no security for their performance save the personal liability of the grantor, would often lead to injustice, leaving persons who had made provision for support in old age or sickness without adequate protection or relief. The courts have almost uniformly treated the claim for support and maintenance as a charge upon the land, which will follow it into the hands of purchasers. In this way the substantial rights of both grantor and grantee are preserved.\u201d\nThe \u201cFirst\u201d item of the will presently under consideration reads as follows:\n\u201cFirst. I will to my son, T. L. Moore, and my two daughters, E. M. Emma Moore, and Ella M. Moore, all of my real estate 150 acres and they are to give support and home to my two sons, J. Robert Moore, W. Yester Moore, and my two daughters, Harriet A. Moore and Ida B. Moore.\u201d\nThe four beneficiaries of the support provision were blind and the testate was primarily concerned with providing for their comfort and support throughout their lives. She devoted her entire estate to this purpose. When the foregoing \u201cFirst\u201d item is considered in the light of pertinent precedent and reasoning, it is clear that its provision for support constituted an equitable lien upon the land devised. This lien, however, has now been fully discharged by reason of the land having been applied for the use and benefit of the blind children throughout their respective lives.\nIf we consider only the \u201cFirst\u201d item, it appears that the testate devised a one-third undivided interest each to T. L. Moore, E. M. Emma Moore, and Ella M. Moore, subject to the equitable lien for support. However, the testate made further provision in the \u201cSecond\u201d item which reads as follows:\n\u201cSecond. I will in case of the death of either of the first named in this will that their interest and responsibility above named go to the other two or if two of them die to the one living.\u201d\nAs stated earlier, the testate\u2019s primary concern was for the comfort and support of her four blind children to whom she pledged her entire estate. We think her intent was, first, to care for the four blind children; second, to provide the survivors or survivor of the devisees the means of caring for the blind children without a claim of title by the heirs of a deceased devisee; and third, to reward those devisees or that devisee who shoulders the responsibility of support longest.\n\u201cIn construing a will the court considers the entire instrument and seeks to ascertain from it the testator\u2019s intent. To effectuate the intention of the testator the court may transpose or supply words, phrases and clauses when the sense of the devise in question \u2018as collected from the context manifestly requires it.\u2019 [citation omitted]\u201d Jernigan v. Lee, 279 N.C. 341, 182 S.E. 2d 351.\nIn our opinion the \u201cSecond\u201d item of the will limits the devise of the \u201cFirst\u201d item to a devise to each of the three devisees of a defeasible fee, plus a contingent remainder. The \u201cSecond\u201d item of the will should be read as though it were written as follows:\nSecond. I will in the case of the death of either of the first named [the devisees] in this will [during the life of any of the supportees and during the life of any of the devisees] that their interest and responsibility above named go to the other two [devisees] or if two of them die [during the life of any of the supportees and during the life of one of the devisees] to the one [the last devisee] living.\nThis we think effectuates the intent of the testate.\nUpon the death of the testate, T. L. Moore, E. M. Emma Moore, and Ella M. Moore each took a defeasible fee title to a one-third undivided interest in the 150 acre tract of land, subject to defeasance upon the concurrence of three events: (1) his or her death, (2) during the life of one or more of the blind children, and (3) during the life of one or more of the devisees. Each of the devisees also took a contingent remainder to the interest of the other, subject to vesting upon the concurrence of the three events.\nWhen E. M. Emma Moore died in 1949, her fee was defeated by the concurrence of the three events: (1) her death (2) during the life of one or more (two) of the blind children, and (3) during the life of one or more (two) of the devisees. The remainder after the determined estate vested in T. L. Moore and Ella M. Moore subject to defeasance upon the concurrence of the three events.\nWhen Ella M. Moore died in 1952, her fee was defeated by the concurrence of the three events: (1) her death (2) during the life of one or more (two) of the blind children, and (3) during the life of one or more (one) of the devisees. The remainder after the determined estate vested in T. L. Moore, no longer subject to defeasance.\nAt this point the fee of T. L. Moore was no longer defeasi-ble because the concurrence of the three events was no longer possible; i.e., he could not die during the life of one or more of the devisees. \u201cWhen the event upon which the fee is to be defeased becomes impossible the fee becomes a fee simple absolute.\u201d 4 Thompson on Real Property (1961 Replacement), \u25a0\u00a7 1891. The fee simple title to the 150 acre tract of land became absolute in T. L. Moore upon the death of Ella M. Moore in 1952 subject only to an equitable lien for the support of the surviving blind children. Upon the death of T. L. Moore in 1963, the fee title to the 150 acre tract passed to the heirs or devisees of T. L. Moore, subject only to the equitable lien for support which became fully satisfied upon the death of Ida B. Moore (the last surviving blind child) in 1966.\nThe judgment of the trial court is reversed and this cause is remanded to the Superior Court for entry of a declaratory judgment construing the will of Margaret Guy Moore in accordance with this opinion.\nReversed and remanded.\nChief Judge Mallard and Judge Campbell concur.", "type": "majority", "author": "BROCK, Judge." } ], "attorneys": [ "Collier, Harris & Homesley, by Walter H. Jones, Jr., for plaintiffs.", "Raymer, Lewis & Eisele, by Douglas G. Eisele, for defendants." ], "corrections": "", "head_matter": "JAMES L. MOORE, ELIZABETH EVA MOORE ALLEY and MARY M. OLIPHANT v. BELLE ALLISON TILLEY and husband, ROBERT TILLEY, GERTA WOLFE and husband, J. DOUGLAS WOLFE, ROSEMARIE MOORE CRAWFORD and husband, CHARLES WILLIAM CRAWFORD, EVA HARRIS MOORE, widow, JOAN MOORE DOUGLAS and husband, RICHARD DOUGLAS, JULIAN CLARK MOORE, unmarried minor, BILLIE CAROLYN MOORE, single, CHARLES P. MOORE, JR. and wife, LORRAINE MOORE, JOHN LEE MOORE and wife, MARILYN MOORE, HILDA MOORE, widow, J. FRANK MOORE, JR., and wife, MRS. J. FRANK MOORE, JR., J. THOMAS MOORE and wife, MRS. J. THOMAS MOORE, ELSIE MOORE VANN and husband, HERBERT W. VANN, BETTY MOORE WILLIAMS and husband, MALLORY HOWARD WILLIAMS, HARRIET NAN MOORE, single minor, MARY MOORE JENNETTE and husband, CARTER JENNETTE, BESSIE MOORE CARTER, widow, GRANT CARTER and wife, BARBARA CARTER, BERTHA M. THOMAS and husband, PERCY THOMAS and EVA D. MOORE, widow\nNo. 7222SC368\n(Filed 2 August 1972)\n1. Wills \u00a7 39\u2014 provision for support \u2014 equitable lien\nA devise to three named children of the testatrix of \u201call of my real estate 150 acres and they are to give support and home to\u201d four other children of testatrix who are blind is held to have created an equitable lien or charge upon the land for support of the blind children which will follow the land into the hands of purchasers.\n2. Wills \u00a7 36\u2014 defeasible fee \u2014 contingent remainder\nAn item of a will devising land to three named children of the testatrix subject to an equitable lien for the support of four other children of the testatrix who are blind, when considered with another item providing that in case of the death of either of the devisees, \u201ctheir interest and responsibility above named to go to the other two or if two of them die to the one living,\u201d held to give each of the devisees a fee defeasible upon (1) his death, (2) during the life of one or more of the blind children, and (3) during the life of one or more of the devisees, plus a contingent remainder to the interest of the other devisees.\nAppeal by plaintiffs from Chess, Judge, 17 January 1972 Session of Superior Court held in Iredell County.\nPlaintiffs instituted this action for a declaratory judgment construing the will of Margaret Guy Moore.\nThe facts which are not in dispute are set forth in the judgment of the trial judge-as follows:\n\u201c1. Margaret Guy Moore died testate a resident o\u00ed Iredell County on June 17, 1908, leaving a will which reads as follows:\n\u2018I, Margaret M. Moore of Iredell County, North Carolina, being of sound mind but realizing the uncertainty of my earthly existence do make this my last will and testament.\n\u2018First. I will to my son, T. L. Moore, and my two daughters, E. M. Emma Moore, and Ella M. Moore, all of my real estate 150 acres and they are to give support and home to my two sons, J. Robert Moore, W. Vester Moore, and my two daughters, Harriet A. Moore and Ida B. Moore.\n\u2018Second. I will in case of the death of either of the first named in this will that their interest and responsibility above named go to the other two or if two of them die to the one living.\n\u2018Third. I will to my son, John S. Moore $5.00.\n\u2018Witness my hand and seal this 8th day of September, 1906.\n\u2018s/ Margaret M. Moore (Seal)\u2019\n\u201c2. At the time of her death, Margaret Guy Moore was the owner of the real estate described in paragraph 3 of the Complaint, the detailed description of which is hereby incorporated in this judgment by reference.\n\u201c3. At the time of her death, Margaret Guy Moore had eight living children, four of whom were normal and four of whom were blind.\n\u201c4. One of the normal children, John S. Moore took $5.00 under his mother\u2019s will, but otherwise did not share in her estate.\n\u201c5. The three other normal children and the year of their deaths are as follows, the year of death appearing in parenthesis after the name of the child:\n(a) E. M. Emma Moore (1949)\n(b) Ella M. Moore (1952)\n(c) Thomas Lee Moore (1963)\n\u201c6. The four blind children and the year of their deaths are as follows, the year of death appearing after the name of the child:\n(a) J. Robert Moore (1934)\n(b) W. Yester Moore (1946)\n(c) Harriet A. Moore (1958)\n(d) Ida B. Moore (1966)\n\u201c7. During the lives of each and every one of the blind children, the rents and profits of the real estate described in the complaint, the description of which is incorporated herein by reference, were used for the maintenance, benefit and support of the blind children.\n\u201c8. The plaintiffs and defendants are the descendants, or the spouses of descendants, of Margaret Guy Moore and constitute all persons who have or may have an interest in the real estate described in the complaint and incorporated in this judgment by reference.\n\u201c9. The will of Margaret Guy Moore was probated on September 5, 1910, and duly recorded in the office of the Clerk of Superior Court of Iredell County, North Carolina, in Will Book 7, page 301.\n\u201c10. That the relationship of all of the parties in this action to Margaret Guy Moore is as set forth in the complaint.\u201d\nThe trial judge concluded and adjudged that under the will E. M. Emma Moore, Ella M. Moore and Thomas Lee Moore each took an undivided one-third interest in fee simple in the said real estate, not subject to divestment but subject only to a covenant upon the land to secure support and a home for J. Robert Moore, W. Vester Moore, Harriet A. Moore, and Ida B. Moore.\nThe plaintiffs, the three children of Thomas L. Moore who was the last survivor of the three devisees, appealed.\nCollier, Harris & Homesley, by Walter H. Jones, Jr., for plaintiffs.\nRaymer, Lewis & Eisele, by Douglas G. Eisele, for defendants." }, "file_name": "0378-01", "first_page_order": 402, "last_page_order": 408 }