{
  "id": 8658473,
  "name": "WILKINSON v. BOYD",
  "name_abbreviation": "Wilkinson v. Boyd",
  "decision_date": "1904-09-20",
  "docket_number": "",
  "first_page": "46",
  "last_page": "48",
  "citations": [
    {
      "type": "official",
      "cite": "136 N.C. 46"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "131 N. C., 148",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8659477
      ],
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        "/nc/131/0148-01"
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    {
      "cite": "134 N. C., 319",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11273056
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/134/0319-01"
      ]
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    {
      "cite": "9 Am. St. Rep., 30",
      "category": "reporters:state",
      "reporter": "Am. St. Rep.",
      "opinion_index": 0
    },
    {
      "cite": "101 N. C., 162",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8650042
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/101/0162-01"
      ]
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  ],
  "analysis": {
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    "char_count": 4664,
    "ocr_confidence": 0.441,
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  "last_updated": "2023-07-14T20:53:15.809157+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "WILKINSON v. BOYD."
    ],
    "opinions": [
      {
        "text": "Montgomery, J.\nTbe construction of tbe fourth clause of the will of Moses Windley is tbe matter before the Court, and, as will be seen, its meaning is largely dependent upon one of tbe provisions of item 3, which is as follows: \u201cItem 3. I give unto my daughter, Nancy E. Windley, with a proviso that if she should die without no children, tbe plantation (describing it) ; that if she should die without children, then I give said plantation above named to my three other children, if a-living, to Henry A. Windley, Martha J. Windley and Mary A. Windley, to be equally divided between them.\n\u201cItem 4. I give with the same proviso the plantation (the one in controversy) to my daughter, Martha J. Windley, that if she should die without leaving lawful heirs begotten of her own body, then I give said plantation to' my other three children and their heirs, the said plantation above named to be equally divided been them.\u201d\nUpon reading the judgment of the Court below it appears that one of the contentions, if not the only one, of the plaintiff appellants' \u2014 Martha Wilkinson nee Windley and her husband \u2014 was that Martha, under the fourth clause of the will of her fattier, took an estate of inheritance under the law known as the \u201cRule in, Shelley\u2019s Case.\u201d In the appellant\u2019s brief filed in this Court, however, that position is not taken, the only contention therein made being that all general devises of land are presumed to be given in fee, and that in the present case the intention of the devisor was to- devise the land in fee-simple to Martha, his daughter, provided she should leave \u201clawful heirs begotten of her body,\u201d and that as she had married and had children, the only condition by which the estate was intended to be defeated had been complied with,, and thereupon that Martha, the devisee, became seized of an indefeasible estate in fee-simple.\nThere could be in this case no application of the Rule in Shelley\u2019s Case. If it should be contended that under the fourth item Martha, the appellant, was given a life estate in the property, with remainder over \u201cto the lawful heirs begotten of her own body,\u201d those words would have to be construed to mean her children, for in item 3 the word \u201cchildren\u201d is used in connection with the devise to the devisor\u2019s daughter, Nancy, and that proviso is carried into item 4 in connection with the devise to the appellant, Martha, and in eases where the subsequent takers are designated as children the Rule in Shelley\u2019s Case does not apply. Leathers v. Gray, 101 N. C., 162, 9 Am. St. Rep., 30; Hauser v. Craft, 134 N. C., 319.\nAs to the contention of the appellant, as it is set out in the brief of counsel and which we have already stated, it cannot be maintained. In Whitfield v. Garris, 131 N. C., 148, where the language of the devise is almost identical with that in the case before us, except as- to names and description o-f property, it was decided that where property is devised to one generally, and if be should die without leaving children or heirs of his body, then over to others., the first taker is invested with a fee defeasible on his dying childless. But that if he di\u00a9 leaving children and not having disposed of the property, then the children take no estate as purchasers by implication under the will, unless that was the testator\u2019s intention, expressed in the will or to be clearly inferred therefrom, and the primary devisee takes the estate of inheritance.\nIn the present case the devisee, Martha, has children, but it does not necessarily follow that any of them will be alive at the time of her death. And the condition of the will is only fulfilled if she have children living at that time. If, then, the devisee, Martha, should have no1 children at the time of her death, the limitation of the contingent remainder to the other three children of the testator would take effect, and his Honor properly held that the appellant, who had contracted to sell and convey the property to the appellee, could not make a good 'and indefeasible title in fee thereto.\nAffirmed.",
        "type": "majority",
        "author": "Montgomery, J."
      }
    ],
    "attorneys": [
      "Rodman & Rodman, for the plaintiffs.",
      "No counsel for the defendants."
    ],
    "corrections": "",
    "head_matter": "WILKINSON v. BOYD.\n(Filed September 20, 1904).\nWILLS \u2014 Legacies and Devises \u2014 Specific Performance.\nWhere real estate is devised to a person, with a proviso that if such person dies without children, then the said property to go to other persons named in the will, the first taker is invested with a fee defeasible on dying childless.\nActioN by G. L. Wilkinson and wife against H. O. Boyd, beard by Judge George U. Brown, at August Term, 1904, of tbe Superior Court of Beaufort County. From a judgment for tbe defendant the plaintiffs appealed.\nRodman & Rodman, for the plaintiffs.\nNo counsel for the defendants."
  },
  "file_name": "0046-01",
  "first_page_order": 86,
  "last_page_order": 88
}