Wilson County NcArchives Court.....W. N. Lucas Et Al, John Hutchinson Et Al V. 1921
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Connie Ardrey n/a December 10, 2009, 6:02 pm

Source: North Carolina Reports Spring Term
Written: 1921

John Hutchinson Et Al v. W. N. Lucas Et Al

(Filed 9 March, 1921)

Estates-Wills-Defeasible Fee-Deeds and Conveyance-Estoppel

A devise to the testator's son, A., and should he die without issue, then the 
lands devised to him to be equally divided among the testator's children or 
their issue living at the death of A.: Held, the estate devised to A. is a 
defeasible fee, and should A. die without issue the estate would vest in his 
brothers and sisters living at the time of his death, and such of their 
children as may then be alive, in fee, as coming from the testator direct. And 
the death of A. not having been shown the contrary is presumed, and a deed 
from his brothers and sisters cannot convey an indefeasible fee simple title 
to a purchaser, or estop their own children or claimants, the children of 
those who are deceased.

Appeal by plaintiffs from Cranmer, J., at November Term, 1920, of Wilson.

Iredell Farmer devised the lands in controversy to his youngest son, Arthur D. 
Farmer, with the following condition:

"If my said son, Arthur D. Farmer, shall die without leaving issue, on his 
death it is my will and desire that all the lands devised in this will shall 
go to and be equally divided among my children or their issue living at his 
death, and to their heirs forever."

It is not alleged that Arthur is dead, and the answer avers that he was in 
Wilson in 1918. The estate devised to Arthur was conveyed by an order of 
court, and thereafter, in 1900, W.T. Farmer, Joshua L. Farmer, and Mary J. 
Farmer, the brothers and sister of Arthur, and the only children of the 
testator, Iredell Farmer, executed a deed and quitclaim for all their right, 
title and interest in the lands in controversy. Joshua L. Farmer, one of the 
brothers of Arthur, is dead, leaving a widow and five children.

The plaintiffs moved for judgment on the pleadings, but the court refused on 
the ground that they could not convey an indefeasible title, and dismissed 
this action, which was brought to compel the defendants to pay the purchase 
money upon the tendering of a deed therefor upon a contract of sale. The 
plaintiffs appealed.

James S. Manning for plaintiffs
J.C. Biggs for defendants

[NC Supreme Court]
Clark, C.J.
Affirmed

[See court case for Judge Clark's findings]


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