Hales v. Renfrow

DkNNY, J.

After giving effect to the codicil to the will of the testator, the testator devised the three lots referred to herein to his sons, Thomas Edwin Hales and Roscoe II. Hales, as tenants in common, in fee simple, but in the event either son should die without children his interest will revert to the testator’s other children. As to each devisee this constitutes a fee, defeasible upon his dying without children.

Conrad v. Goss, 227 N. C., 470 , 42 S. E. (2d), 609 ;

Cherry v. Cherry, 179 N. C., 4 , 101 S. E., 504 ;

Hobgood v. Hobgood, 169 N. C., 485 , 86 S. E., 189 . The other children, as disclosed by the record, could only be the surviving son and his sister, Mrs. Louise Hales Parker. All the devisees, together with the widow of the testator, the husband of Mrs. Louise Hales Parker and the wife of Thomas Edwin Hales, having joined in the execution of the deed tendered to the defendants, we think the deed does convey a good and indefeasible fee simple title to the three lots referred to above.

Bank v. Whitehurst, 202 N. C., 363 , 162 S. E., 768 ;

Williams v. R. R., 200 N. C., 771 , 158 S. E., 473 ;

Grace v. Johnson, 192 N. C., 734 , 135 S. E., 849 ;

Walker v. Butner, 187 N. C., 535 , 122 *241 S. E., 301. The ease of Daly v. Pate, 210 N. C., 222 , 186 S. E., 348 , cited in brief, is distinguishable from the case before us. There the testator provided for the reversion of the property to his own estate, in the event the first taker died without children, then to be “divided as best it may be between my then living nephews and nieces.”

As to the other lot which was not specifically devised, we concur in the judgment of the court below to the effect that the residuary clause of the testator’s will was sufficient to devise thjs lot to his widow and children, share and share alike. Conceding, however, but not deciding, that the residuary clause is insufficient to devise this lot, the purported devisees are the identical persons who would hold every right, title and interest in the property, had the testator died intestate. The widow and all the heirs at law and devisees of the testator, together with the wife and husband respectively of those who are married, having joined in the execution of the deed tendered to the defendants, the deed conveys a good and indefeasible fee simple title to this additional lot.

The judgment of the court below is Affirmed.