{
  "id": 8655830,
  "name": "B. R. JARMAN v. N. E. DAY",
  "name_abbreviation": "Jarman v. Day",
  "decision_date": "1920-03-17",
  "docket_number": "",
  "first_page": "318",
  "last_page": "320",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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      "cite": "151 N. C., 543",
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  "last_updated": "2023-07-14T16:12:15.491038+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "B. R. JARMAN v. N. E. DAY."
    ],
    "opinions": [
      {
        "text": "Allen, J.\nThere is nothing in this will having a tendency to show that the testator did not use the word \u201cland\u201d in the sense of \u201cgive\u201d or \u201cdevise,\u201d and \u201cthe general rule is that unless it is manifest that the testator did not intend an estate to pass, the word \u2018lend\u2019 will pass the property to which it applies in the same manner as if the word \u2018give\u2019 or \u2018devise\u2019 had been used.\u201d Sessoms v. Sessoms, 144 N. C., 124.\nThe testator has then devised the land in controversy to the plaintiff, Rachel Jarman, then Foy, for life, and to the heirs of her body, which standing alone would be a fee simple under the rule in Shelley\u2019s case, but with a limitation over to \u201cJohn Shepard and his lawful heirs\u201d in the event the plaintiff \u201cdies leaving no lawful issue of her body,\u201d which clearly makes the estate defeasible. Dawson v. Ennett, 151 N. C., 543; Smith v. Lumber Co., 155 N. C., 391; Rees v. Williams, 165 N. C., 203.\nIn the Smith case the devise was to six children in fee, with the limitation that \u201cIf any of my said children mentioned in this item of my said will should die without leaving lawful issue of his or her body surviving, or to be born within the period of gestation after his death,, then it is my will and desire that the part therein given and devised to said child shall descend to and upon the survivors of my said children mentioned in this item of this my will, or upon the lawful heirs who may be surviving any of my said children mentioned in this item,\u201d and the-Court said, in construing the will: \u201cUnder several recent decisions of the Court, the children, under the third item of the will, took an estate-in fee simple, defeasible as to each on an 'uncertain event \u2014 in this case, \u2018a dying without leaving lawful issue of his or her body surviving, or to-be born within the period of gestation after death.\u2019 Perrett v. Byrd, 152 N. C., 220; Dawson v. Ennett, 151 N. C., 543; Harrell v. Hagan, 147 N. C., 111; Sessoms v. Sessoms, 144 N. C., 121; Whitfield v. Garris, 134 N. C., 24; Smith v. Brisson, 90 N. C., 284. And we have held, also, in these and other cases, that when a devise is limited over on a contingency of this kind, unless a contrary intent clearly appears in the will, the event by which each interest is to be determined must be referred, not to the death of the devisor, but to that of the several holders respectively.\u201d\nMany other authorities could be cited to the same effect, but it is not necessary to do so.\nAffirmed.",
        "type": "majority",
        "author": "Allen, J."
      }
    ],
    "attorneys": [
      "E. M. Koonce for plaintiff.",
      "Rodolph Duffy for defendant."
    ],
    "corrections": "",
    "head_matter": "B. R. JARMAN v. N. E. DAY.\n(Filed 17 March, 1920.)\n1. Wills \u2014 Devise\u2014\u201cRend\u201d\u2014Estates.\nThe word \u201clend\u201d applying to lands and used in a will, will be construed as \u201cgive\u201d or \u201cdevise,\u201d unless it is manifest from the terms of the will, that the testator did not intend an estate therein to pass.\n2. Same \u2014 Defeasible Fee \u2014 Contingency\u2014Time of Happening.\nAn estate \u201cloaned\u201d to testator's daughter R. during her natural life and at her death \u201cI lend all of the\u201d designated land \u201cto the lawful heirs of her body, and to the lawful begotten heirs of their bodies if any,\u201d standing alone, would convey the fee simple title, but with the further expression, \u201cin case she should die leaving no lawful issue of her body then I give all the above described land to my son J., and his lawful heirs,\u201d the estate is defeasible in the event of the death of E. \u201cleaving no lawful issue of her body,\u201d the contingency being the death of the devisor, but that of E. without leaving \u201clawful issue of her body,\u201d etc.\nAppeal by plaintiff from Daniels, J., at tbe Spring Term, 1920, at chambers, under a case agreed, from Onslow.\nThis is an action to recover the purchase price of a tract of land, the defendant having refused to accept the deed tendered by the plaintiff, and to pay the purchase money, according to his agreement, on the ground that the title of the plaintiff is not an absolute fee-simple estate.\nThe plaintiff derives title .under the will of Gardner Shepard, the material parts of which are as follows:\n\u201cI lend to my daughter, Rachel Foy, all of the land, etc. (description omitted), during her natural life, and at her death I lend all the above mentioned land to the lawful begotten heirs, of her body, and to the lawful begotten heirs of their bodies, if any, and in case my daughter, Rachel Foy, dies leaving no lawful issue of her body, then I give all of the above mentioned land to my son John Shepard, and his lawful heirs.\u201d\nThe plaintiff, Rachel Jarman, is the Rachel Foy mentioned in said will, and she has living children and grandchildren.\nJohn Shepard died in 1896, leaving children and grandchildren, and he has never conveyed his interest in said land.\nHis Honor held that the plaintiff did not have an absolute estate in \u2022 fee, but that it was defeasible on her dying leaving no issue, and plaintiff excepted.\nJudgment in favor of the defendant, and plaintiff appealed.\nE. M. Koonce for plaintiff.\nRodolph Duffy for defendant."
  },
  "file_name": "0318-01",
  "first_page_order": 374,
  "last_page_order": 376
}