{
  "id": 8658941,
  "name": "COOPER EX-PARTE",
  "name_abbreviation": "Ex parte Cooper",
  "decision_date": "1904-10-04",
  "docket_number": "",
  "first_page": "130",
  "last_page": "132",
  "citations": [
    {
      "type": "official",
      "cite": "136 N.C. 130"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "117 N. C., 497",
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    {
      "cite": "101 N. C., 162",
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      "cite": "45 N. C., 164",
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    {
      "cite": "119 N. C., 89",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8654420
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  "analysis": {
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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": [
      "COOPER EX-PARTE."
    ],
    "opinions": [
      {
        "text": "Montgomery, J.\nIt becomes necessary in this case to construe a clause of the will of W. A. Cooper, which is in the following words: \u201cAnd I bequeath to M. W. Cooper a certain tract of land (fully described) for the use of Arch Cooper, son of W. D. Cooper, and (if) Arch Cooper ever marries and has a lawful heir they have this land.\u201d The appellants make two contentions: First, that the rule in Shelley\u2019s case is applicable, and that Arch Cooper took a fee-simple estate in the land, and, second, that if the words 'lawful heirs are construed to mean \u201cchildren,\u201d and the will should be made to read \u201cto the use of Arch Cooper and his children if he marries and has any,\u201d that then, under the case of Silliman v. Whitaker, 119 N. C., 89, Arch having had no children at the time of the death of the testator took a fee-simple estate in the land.\nThe contentions of the appellees are: First, that the devise was an executory limitation to be protected for the benefit of the children of Arch, and that the legal title therefore remains in the trustee, N. W. Cooper and his heirs, until Arch Cooper married and had a child or issue, and, second, that the clause constituted a shifting devise, a limitation of the whole fee upon a future contingency \u2014 the marriage of the first-named devisee and the birth of issue; to be more particular, that there was to be a substitution of the fee in Arch Cooper by another in his children if he should marry and have children\nWe cannot give either one of the appellees\u2019 constructions to the clause of the will under consideration. To adopt the first would be to do violence to the plain language of the will and to the intention of the testator as well. It could not have been in his mind to deprive his own son of the benefits of the estate by conferring them upon the first-born grandchild. The same result would follow if we adopted the appellees\u2019 second contention, for under that contention if the fee shifted from Arch, the father, to his first-born child, no subsequently born child could take. Only those who could answer to the \u201ccall of the roll\u201d at the time of the shifting of the fee \u2014 the birth of the first child \u2014 could be let in. The estate must have become fixed immediately upon the birth of the first child, and that child would ha^e been the absolute owner in fee if the shifting use or fee theory were held to be the correct one. Dupree v. Dupree, 45 N. C., 164, 59 Am. Dec., 590; Walker v. Johnston, 70 N. C., 576. We must then regard the words \u201cand if Arch Cooper ever marries\u201d as surplusage. That being done, the devisee, Arch Cooper, took a fee-simple estate, for the application of the rule in Shelley\u2019s case is clear upon the balance left of the clause. Leathers v. Gray, 101 N. C., 162, 9 Am. St. Rep., 39; Nichols v. Gladden, 117 N. C., 497.\nThe proceedings before the Clerk of the Superior Court which resulted in a sale of the land devised were utterly void, but as the appellees, children of the devisee, Arelh Cooper, had no interest in the land, as we have seen, they were not prejudiced by the decree of sale, and no appeal lay from such decree. However, it appears from the record of the proceedings before the Clerk that they, being infants, were not in fact represented by a guardian or next friend, and we deem it proper to order that the costs of this appeal be taxed against the appellants.\nError.",
        "type": "majority",
        "author": "Montgomery, J."
      }
    ],
    "attorneys": [
      "F. A. Woodard, F. S. Spruill and W. H. Ruffin, for the appellant.",
      "Jacob Battle, for the appellees."
    ],
    "corrections": "",
    "head_matter": "COOPER EX-PARTE.\n(Filed October 4, 1904).\n1. WILLS \u2014 Legacies and Devises \u2014 Rule in Shelley\u2019s Case.\nA devise of realty to a person, and if lie marries \u201cand has a lawful heir,\u201d they to have the land, such devisee takes a fee-simple title.\n2. COSTS \u2014 Appeal\u2014Infants\u2014Guardian Ad Litem.\nWhere certain infant appellees were not represented by a guardian or next friend, the cost of the appeal would be taxed to the appellants, though the cause was reversed.\nPetitioN of Q. B. Cooper and others for the construction of the will of AV. A. Cooper, heard by Judge W. B. Council at chambers, at Henderson, N. C., May 26, 1904. Erom a judgment construing the will, all the petitioners, excxept B. A. Cooper and wife, appealed.\nF. A. Woodard, F. S. Spruill and W. H. Ruffin, for the appellant.\nJacob Battle, for the appellees."
  },
  "file_name": "0130-01",
  "first_page_order": 170,
  "last_page_order": 172
}