Pitt County NcArchives Court.....C. J. Whitehurst Et Al, Z. V. Whichard Et Al V. 1921 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 13, 2009, 9:02 pm Source: North Carolina Reports Sping Term Written: 1921 Z.V. Whichard Et Al v. C.J. Whitehurst Et Al (Files 16 March, 1921) 1. Deeds and Conveyance-Fee-Heirs-Wills-Devises-Intent While prior to 1879 (C.S., 991) the word "heirs" was generally necessary to create a fee simple estate, there is exception as to devises and equitable estates, and these may pass without the word "heirs" if such intention appears by correct interpretations of the instrument. 2. Same-Interpretation-Intent Where it appears from the construction of a deed made in 1871 that the land granted was to his daughter in lieu of her share in the grantor's estate, the construction of this deed will be governed by the principles applicable to the interpretation of devises and equitable estates arising under a will, when expressed in the instrument as being in the nature of, or a substitute for, a devise. 3. Same-Estates-Tenants in Common Where, in 1871, a father has conveyed certain of his lands to his daughter, "and her nearest, blood relations," in lieu of her share in his estate, and from the interpretation of the instrument as a whole this intent clearly appears, and is evidenced by the donor's express language, such intent will control the interpretation, and the daughter takes a fee simple title to the whole, and not that of a tenant in common with her children. 4. Deeds and Conveyances-Equity-Case Agreed-Cancellation-Statutes While ordinarily it was necessary to invoke the jurisdiction of a court of equity to correct a deed to lands made before 1879 (C.S., 991), so as to show that in fact it was intended to convey a fee simple title, when the word "heirs" had been omitted, yet, when the cause is submitted upon a case agreed (C.S., 961), the court, in its equitable powers, may correct the instrument, when it clearly appears from the interpretation thereof that the donor intended to pass a fee simple title, and had unintentionally omitted therefrom the word "heirs." Stacy, J., dissenting; Allen, J. concurring in the dissenting opinion Appeal by plaintiffs from Devin, J., at January Term, 1921, of Pitt. This case was submitted under C.S. 961, upon the following "facts agreed." In 1871 John F. Whichard and his wife conveyed to their daughter the land in controversy, duly described, "unto said Anne E. Page and her nearest blood relations forever." At the date of said deed, said Anne E. Page had living one son, named Billy Page, who died before reaching his majority, and left no children, but since the date of said deed there has been born to her five children, who were living when Billy died. In 1910 said Anne E. Page conveyed said land to the wife of one of her sons in fee simple, who subsequently conveyed the same, with the joinder of her husband, to the plaintiffs. This proceeding was instituted for the purpose of selling the land for partition, and was bought by the defendants, who now decline to accept a deed from the commissioner and pay for the land solely upon the ground that they cannot obtain fee simple title to the same. The court held that the plaintiffs were entitled to an undivided one-half interest in the land by reason of the deed from Anne E. Page, and to a one-tenth undivided interest by reason of the deed from C.F. Page and wife, but that the other four defendants, children of Anne Page, are the owners in fee simple of an undivided four-tenths, as tenants in common, interest in said lands, from which judgment the plaintiffs appealed. S.J. Everett for plaintiffs Skinner & Whedbee for defendants [NC Supreme Court] Clark, J. Reversed Additional Comments: See court case for Judge Allen's findings. File at: http://files.usgwarchives.net/nc/pitt/court/cjwhiteh1256wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 4.2 Kb