Taylor v. . Taylor, 45 S.E.2d 368 (N.C. 1947). · Go Syfert
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Taylor v. . Taylor, 45 S.E.2d 368 (N.C. 1947). Cases Citing This Book View Copy Cite
45 citation events across 3 distinct courts.
Strongest positive: Coble v. Patterson (ncctapp, 1994-04-19)
Treatment trajectory · 1948 → 2026 · click a year to view as-of
1948 1987 2026
Top citers, strongest first. 2 distinct citers. How cited ↗
cited Cited as authority (rule) Coble v. Patterson
N.C. Ct. App. · 1994 · confidence medium
Taylor v. Taylor, 228 N.C. 275, 277 , 45 S.E.2d 368, 369 (1947); See also Quickel v. Quickel, 261 N.C. 696, 698 , 136 S.E.2d 52, 54 (1964); Leonard v. Dillard, 87 N.C.
discussed Cited as authority (rule) Leonard v. Dillard
N.C. Ct. App. · 1987 · confidence medium
Of course, “this rule, as well as all rules of construction, must yield to the paramount intent of the testator as gathered from the four corners of the will.” Taylor v. Taylor, 228 N.C. 275, 277 , 45 S.E. 2d 368, 369 (1947).
Retrieving the full opinion text from the archive…
BESSIE TAYLOR, Et Al.,
v.
JOHN B. TAYLOR, Et Al.
Supreme Court of North Carolina.
Dec 10, 1947.
45 S.E.2d 368
1947 N.C. LEXIS 322
Frazier ■& Frazier for petitioners, appellees. , J. A. Cannon, Jr., for respondents, appellants.
Stacy.
Cited by 23 opinions  |  Published
Stacy, C. J.

"What estate is devised in Item 3 of the Will of Lillie Taylor Jordan? The Superior Court adjudged a fee, and we approve.

It is provided by G. S., 31-38, that when real estate is devised to any person, the same shall be held and construed a devise in fee simple, unless such devise shall, in plain and express language 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. Elder v. Johnston, 227 N. C., 592; Early v. Tayloe, 219 N. C., 363, 13 S. E. (2d), 609. Consequently, an unrestricted or indefinite devise of real property is regarded[*277] as a devise in fee simple. Heefner v. Thornton, 216 N. C., 702, 6 S. E. (2d), 506; Barco v. Owens, 212 N. C., 30, 192 S. E., 862. And so,'also, is a devise generally to one person with limitation over to another of “whatever is left” at the death of the first taker. Patrick v. Morehead, 85 N. C., 62; Carroll v. Herring, 180 N. C., 369, 104 S. E., 892. In the ease last cited, it is said: “Where real estate is given absolutely to one person, with a gift over to another of such portion as may remain undis-posed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given.” Accordant: Croom v. Cornelius, 219 N. C., 761, 14 S. E. (2d), 799; Hambright v. Carroll, 204 N. C., 496, 168 S. E., 817; Lineberger v. Phillips, 198 N. C., 661, 153 S. E., 118; Roane v. Robinson, 189 N. C., 628, 127 S. E., 626; Fellowes v. Durfey, 163 N. C., 305, 79 S. E., 621; Holt v. Holt, 114 N. C., 241, 18 S. E., 967.

Indeed, it is a general rule of testamentary construction that an unrestricted devise of real estate carries the fee, and a subsequent clause in the will expressing a wish, desire, or even direction for the disposition of what remains at the death of the devisee, is not allowed to defeat the devise, nor limit it to a life estate. Barco v. Owens, supra. It is understood, of course, that this rule, as well as all rules of construction, must yield to the paramount intent of the testator as gathered from the four corners of the will. Jolley v. Humphries, 204 N. C., 672, 169 S. E., 417. Such was the reason for taking the case of Hampton v. West, 212 N. C., 315, 193 S. E., 290, out of the general rule; and' for like reason it is distinguishable from the present case.

The construction of the subject will, in accordance with the general rule, is approved.

Affirmed.