{ "id": 8631243, "name": "DRAPER BROWN v. W. U. LEWIS", "name_abbreviation": "Brown v. Lewis", "decision_date": "1929-11-13", "docket_number": "", "first_page": "704", "last_page": "707", "citations": [ { "type": "official", "cite": "197 N.C. 704" } ], "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": "196 N. C., 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627651 ], "opinion_index": 0, "case_paths": [ "/nc/196/0470-01" ] }, { "cite": "187 N. C., 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653362 ], "opinion_index": 0, "case_paths": [ "/nc/187/0134-01" ] }, { "cite": "37 N. C., 376", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "178 N. C., 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272440 ], "opinion_index": 0, "case_paths": [ "/nc/178/0359-01" ] }, { "cite": "195 N. C., 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631797 ], "opinion_index": 0, "case_paths": [ "/nc/195/0734-01" ] }, { "cite": "186 N. C., 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653711 ], "opinion_index": 0, "case_paths": [ "/nc/186/0387-01" ] }, { "cite": "165 N. C., 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657268 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/165/0069-01" ] }, { "cite": "189 N. C., 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653522 ], "opinion_index": 0, "case_paths": [ "/nc/189/0097-01" ] }, { "cite": "163 N. C., 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271404 ], "opinion_index": 0, "case_paths": [ "/nc/163/0230-01" ] }, { "cite": "161 N. C., 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271871 ], "opinion_index": 0, "case_paths": [ "/nc/161/0553-01" ] }, { "cite": "114 N. C., 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649886 ], "opinion_index": 0, "case_paths": [ "/nc/114/0241-01" ] }, { "cite": "80 Me., 290", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 587849 ], "opinion_index": 0, "case_paths": [ "/me/80/0290-01" ] }, { "cite": "163 Mass., 69", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 786227 ], "opinion_index": 0, "case_paths": [ "/mass/163/0069-01" ] } ], "analysis": { "cardinality": 513, "char_count": 10255, "ocr_confidence": 0.49, "pagerank": { "raw": 8.836379028191709e-08, "percentile": 0.4980628214231795 }, "sha256": "6ea8a9894cee80388aac9b6df3aa153b120bba533aac67b02231cca19d0fba09", "simhash": "1:2d64da40dc1a83c6", "word_count": 1862 }, "last_updated": "2023-07-14T16:27:44.780576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DRAPER BROWN v. W. U. LEWIS." ], "opinions": [ { "text": "ClaeksoN, J.\nItem No. 9 and the material part of Item No. '10 of the will of E. B. Fitzgerald is as follows :\n\u201cItem 9: I also want whatever part of my estate that is left at the death of my wife, and after the younger children have been educated, equally divided among my living children at that time.\nItem 10: I give, devise and bequest unto my beloved wife, Sarah A. W. Fitzgerald, all her heirs, executors, administrators and assigns, all of the remainder and residue of my estate, real and personal and mixed, wheresoever and in.whatever condition it may be found.\u201d\nSarah A. W. Fitzgerald conveyed to the plaintiff, Draper Brown, a piece of land in fee simple, known as lot No. 54, as shown on a certain map duly recorded. No question is made as to the description of the lot. The plaintiff, Draper Brown, in turn made a contract to convey the same lot by warranty deed to the defendant, W. U. Lewis, in fee simple for $300. The defendant, W. U. Lewis, refused to accept the warranty deed tendered by plaintiff in fee simple, on the ground that under the will of E. B. Fitzgerald his wife Sarah A. W. Fitzgerald had only a life estate and could not convey to Draper Brown a fee simple title, and he in turn could not convey a fee simple title to the defendant.\u201d We cannot so hold.\nSarah A. W. Fitzgerald was the wife of E. B. Fitzgerald, and naturally, and as shown by the language of the will, the principal object of his bounty. He had given to his children and other near kin certain property, and when he came to dispose of the residue of his property, in Item 10, says: \u201cI give, devise and bequest unto my beloved wife, Sarah A. W. Fitzgerald all her heirs and executors, administrators and assigns.\u201d It can be readily seen that he intended to give her a fee simple title, and if he had used the word and instead of all, the usual language at common law before the statute, in denoting a fee simple, there would have been no question. He then continues \u201call of the remainder and residue of my-estate, real and personal, and mixed, wheresoever and in whatsoever condition it may be found.\u201d We think his intention 'was clear to devise a fee simple to his wife. The word all was a casus, and we think was intended to denote and. If he did not intend to devise a fee simple, why use the words \u201cher heirs and executors, administrators and assigns.\u201d Gordon v. Ehringhaus, 190 N. C., at p. 150. Assigns means: \u201cThose to whom property shall have b'een transferred. Now seldom used except in the phrase, in'deeds, \u2018heirs, administrators and assigns.\u2019\u201d Black\u2019s Law Dic., p. 97.\n\u201cThe use of the word \u2018assigns\u2019 makes it clear that the gift was absolute and not alternative. (Kendall v. Clapp, 163 Mass., 69) . In the Keniston case (Keniston v. Adams, 80 Me., 290),, Chief Justice Peters, writing for the unanimous Court, said': \u2018The language here is to assigns as well as' to heirs, and the power of assigning implies an absolute title.\u2019 \u201d In re Tamargo, 220 N. Y., Reports, at p. 229.\nC. S., 4162, is as follows: \u201cWhen real estate shall be devised to any person, the .same shall he 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.\u201d\n\u201cThe rule is well settled that in a will no words are necessary to enlarge an estate devised or bequeathed into- an absolute fee. On the contrary, restraining expressions must be used to confine the gift to the life of devisee or legatee. Holt v. Holt, 114 N. C., 241; Jones v. Richmond, 161 N. C., 553. In Griffin v. Commander, 163 N. C., 230, where the testator' devised to his wife \u2018all the remainder of my estate, real and personal, with power to give and devise the same after her death to her beloved children and grandchildren,\u2019 it was held that she took in fee simple,\u2019\u2019 Springs v. Springs, 182 N. C., at p. 488; O\u2019Quinn v. Crane, 189 N. C., 97.\nThese words in Item 9, \u201cI also want,\u201d etc., may'be construed as merely expressing the wish of the testator without any intention on his part to affect the title to or estate in the land devised in fee simple in Item 10 to his wife, the primary object of his bounty. Carter v. Strickland, 165 N. C., 69; Springs v. Springs, supra; Weaver v. Kirby, 186 N. C., 387; Hass v. Hass, 195 N. C., 734.\nThe principle is thus'stated, citing numerous authorities, in Carter v. Strickland, 165 N. C., at 71-2: \u201cAnd it is now the prevailing doctrine, certainly so in this jurisdiction, that such words will be given their ordinary significance, and will not have the effect, as stated, unless from the terms and\u2019 dispositions of the will and the circumstances relevant to its proper construction it clearly appears that they are to be considered as imperative and that the testator intended to create a trust.\u201d\nIn Hardy v. Hardy, 174 N. C., at p. 506-7, speaking to the subject: \u201cUnder the early English and American authorities, language in a will expressive of the wish or desire of the testator as to the disposition of bis property was generally held to raise a trust, or to limit the estate devised, unless a contrary intent was manifest from a consideration of the whole will; but the tendency of modern authority is to reverse this rule, and to bold that precatory words \u2018are not to be regarded as imperative unless it is plain from the context that the testator so intended them.\u2019 \u201d\nPrecatory words: Words of entreaty, request, desire, wish-or recommendation, employed in wills, as distinguished from direct and imperative terms. 49 A. L. R., 18n, 76n.\nIn Laws v. Christmas, 178 N. C., 359, the words \u201cI want,\u201d etc., were held, in construing the intent of the testator, to create a precatory trust, but this construction was in reference to the peculiar facts of that case. In the present action the conveyance of the property in Item 10 to testator\u2019s wife was absolute and in fee simple with no' \u201cstrings\u201d on the conveyance. This absolute fee simple title made by testator of the residue of bis property to bis beloved wife, so named, the primary object of bis bounty, cannot be fettered by the language in Item 9 of the will. In fact, the last event referred to in Item 9 is uncertain as to any estate left at the death of Sarah A. W. Fitzgerald. This item also clearly implies a right given Sarah A. W. Fitzgerald to alienate the property. It implies that it may be necessary to do this so that the younger children have an education. Maclin v. Smith, 37 N. C., 376; Wells v. Williams, 187 N. C., 134; Roane v. Robinson, 189 N. C., at p. 631. See Cagle v. Hampton, 196 N. C., 470.\nIn our opinion the plaintiff acquired a title in fee simple to the lot in question under Item 10 of the will and is entitled to the specific performance of bis contract with defendant. For the reasons given, the judgment is\nAffirmed.", "type": "majority", "author": "ClaeksoN, J." } ], "attorneys": [ "H. Q. Harris for plaintiff.", "L. J. Phipps for defendant." ], "corrections": "", "head_matter": "DRAPER BROWN v. W. U. LEWIS.\n(Filed 13 November, 1929.)\n1. Wills E b \u2014 Devise in this case held to be in fee simple.\nWhere two items of a will are apparently in conflict, one a devise to the testator\u2019s wife of the residue and remainder of the estate \u201call her heirs, executors, administrators and assigns,\u201d and the preceding item, \u201cI want whatever part of my estate is left at the death of my wife, and after the younger children have been educated, equally divided among my living children at that time\u201d: Held, the wife takes an absolute fee-simple title to the lands thus devised, she being regarded as the primary object of the testator\u2019s bounty, and a devise being construed to be in fee simple unless a contrary intention is shown by the will or some part thereof. O. S., 4162.\n2. Same \u2014 \u201cAll\u201d may be construed \u201cand\u201d \u2014 Precatory Words.\nUnder a devise of the remainder of the testator\u2019s estate to his wife and \u201call\u201d her heirs: Held, the word \u201call\u201d may be construed \u201cand,\u201d giving the estate to her \u201cand her heirs,\u201d or a devise in fee simple; and construed in connection with another item of the will, \u201cI want whatever part of my estate that is left at the death of my wife to be divided among my living children,\u201d the word \u201cwant,\u201d so used, is a precatory word not affecting the quality of the estate devised to the wife, and does not create a trust.\nAppeal by defendant from Staclc, J., at June Civil Term, 1929, of DuehaM.\nAffirmed.\nTbe following judgment was rendered in tbe court below :\n\u201cTbis cause coming on to be beard before tbe undersigned on an Agreed Statement of Facts, botb tbe plaintiff and tbe defendant being represented by counsel, and it appearing from tbe Agreed Statement of Facts that on or about 11 April, 1929, tbe plaintiff contracted and agreed to execute a warranty deed to tbe defendant, and tbe defendant agreed to pay three hundred dollars for lot No. 54, as shown on map recorded in Book 20, at page 431; that defendant paid five dollars at tbe time of tbe signing of tbe said contract; that on or about 17 April, 1929, tbe plaintiff tendered to tbe defendant a warranty deed for tbe said property and demanded payment of tbe balance of two hundred ninety-five dollars. It further appeared that tbe plaintiff purchased tbe, lot from Sarah A. W. Fitzgerald, who claims title to it under Item No. 10 of R. B. Fitzgerald\u2019s will, which will is duly probated and recorded in Will Book 3, at page 74. Item No. 10 reads as follows:\n\u2018Item 10: I give, devise and bequest unto my beloved wife, Sarah A. W. Fitzgerald, all her heirs, executors, administrators and assigns, all of tbe remainder and residue of my estate, real and personal and mixed, wheresoever and in whatsoever condition it may be found.\u2019\nFrom tbe foregoing facts and from the language of Item 10 of the will of E. B. Fitzgerald, the undersigned finds as a matter of law that Sarah A. W. Fitzgerald takes a. fee simple title to the property passing under Item No. 10 of the said will, and that the deed tendered to the defendant by the plaintiff conveyed a fee simple title.\nIt is therefore ordered and adjudged that the plaintiff recover of the defendant the sum of two hundred ninety-five dollars with interest on two hundred ninety-five dollars from 17 April, 1929, and the cost of this action to be taxed by the clerk.\u201d\nH. Q. Harris for plaintiff.\nL. J. Phipps for defendant." }, "file_name": "0704-01", "first_page_order": 768, "last_page_order": 771 }