Richmond County NcArchives Court.....Mrs. S. J. Reynolds Et Al, M. W. Hines Et Al V. 1921
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Connie Ardrey n/a December 13, 2009, 8:25 pm

Source: North Carolina Reports Sping Term
Written: 1921

M. W. Hines Et Al v. Mrs. S. J. Reynolds Et Al

(Filed 4 May, 1921)

1. Wills-Devise-Heirs-Fee Simple
While a devise is to the testator's son, "to him and his heirs forever," 
passes a fee-simple title to him without the use of restrictive expression, it 
will not be so construed when it appears from the interpretation of other 
language used in the will that he was only to take a defeasible fee.

2. Same-Defeasance-Issue-Children-Estates-Remainders
Where a devise is to the testator's son "and his heirs," followed by the words 
that in the event he should die "without heirs," then to the testator's 
daughter "and the heirs of her body," the word "heirs," used in connection 
with the son, evidences the testator's intent, from the relationship of the 
devisees, that it should mean issue or children of the son, and the 
words "bodily heirs" used in connection with the daughter, as issue or 
children of the daughter, and upon the happening of the contingency after the 
death of the daughter, her issue or children will take the fee-simple title, 
to the exclusion of the heirs general of the son dying without issue.

3. Same-Statutes-Descendible Interests
Under the provisions of Rules 1 and 10, C.S., 1654, a devise to the daughter 
of the testator and her issue, upon the death of the testator's son without 
issue, is such an interest as is descendible to the issue of the daughter when 
she had died before the happening of the contingency.

4. Wills-Devise-Estates-Remainders
Where the testator directs that two of his children, beneficiaries under his 
will, pay a certain sum of money to another of his children, and "no more," 
the intent of the testator is manifest that the other two children shall enjoy 
the remainder of the gifts to them.

Appeal by the petitioners in partition proceedings from Finley, J., at June 
Term, 1920, of Richmond.

This is a proceeding for partition of land.

Both parties claim under Joseph Hines, who died in 1865, leaving a will.

In the first item of the will the testator devised all his property to his 
wife for life.

In the second item he devised all his land, after the death of his wife, to 
his son, John M. Hines, "to have and to hold to him and his heirs forever." He 
also gives in the same item all his negroes, to be equally divided between his 
son, John M. Hines, and his daughter, Elizabeth, stating that he had already 
advanced his daughter seven negroes, and said item closes with the following 
provisions: "In case of the death of my said daughter, S. Elizabeth, without 
heirs her surviving, all the negroes to her bequeathed shall vest in and 
become the property of my said son, John M. Hines, and his heirs; and in case 
of the death of my son, John M. Hines, without heirs him surviving, then all 
the property bequeath to him, both real and personal, shall vest in and become 
the property of my said daughter, S. Elizabeth, and the heirs of her body, to 
her and their sole and separate use as aforesaid. I further bequeath to my 
said daughter, S. Elizabeth, upon the death of my wife, Sarah, two good beds 
and furniture and one common farm horse."

In the third item he gives his son, M.W. Hines, $400 to be paid equally by 
John M. Hines and his daughter Elizabeth in ten annual installments, and 
concludes this item as follows: "I make the above bequeath to my son, M.W. 
Hines, and no more."

The following facts were admitted:

"1. That said will was executed on or about 1861, and that testator died on or 
about 1865, and the will was admitted to probate soon thereafter.

"2. That testator left surviving him his widow, Sarah C. Hines, and three 
children, to wit: M.W. Hines, S. Elizabeth (Baldwin) (Robinson), and John M. 
Hines, and none others.

"3. That the widow died intestate about 1870.

"4. That M.W. Hines died intestate about 1877, and that plaintiffs are his 
lineal descendants.

"5. That S. Elizabeth died intestate in the year 1915, and that the defendants 
are her lineal descendants.

"6. That John M. Hines died in the year 1917 intestate and without ever having 
had issue.

"7. That John M. Hines, deceased, held the land described in the petition 
under the will of Joseph Hines, deceased.

"8. That the relationship as set out in the proceedings is admitted to be 
correct and that all parties in interest are before the court."

His Honor held that the defendants, who are the children and heirs of the 
daughter, Elizabeth, were the owners of the land, and entered judgment 
accordingly, from which the petitioners appealed.

A.R. McPhail and McIntyre, Lawrence & Proctor for plaintiff
W.L. Spence, O.L. Henry and W.R. Jones for defendants

[NC Supreme Court]
Allen J.
We are therefore of opinion the defendants are the owners of the land and that 
the petitioners are not entitled to partition thereof.
Affirmed

Additional Comments:
See court case for Judge Allen's findings.

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