Page images
PDF
EPUB

was

.

A

PPEAL by defendant from a judgment, James G. Taylor, devisee of the tract of

of the Superior Court for Martin Coun. land in question, under the will of his ty, in plaintiff's favor, upon submission of father, Jesse Erwin Taylor, and, on the a controversy without action to determine facts agreed, the title offered was properly whether the title tendered by plaintiffs made to depend upon the construction of under a land contract was good. Affirmed. the will of said Jesse, in terms as follows: The facts are stated in the opinion.

"Item 5. I loan to James G. Taylor durMr. Clayton Moore for appellant. ing the term of his natural life the follow

Messrs. H. W. Stubbs and A. R. Dun- ing described tract of land, beginning at a ning for appellees.

gum in Bee branch, Moye P. Taylor's cor

ner, and running along said Taylor's line Hoke, J., delivered the opinion of the 4 25100 chains; thence S. 55 W. to the line of court

the lands devised to my daughter, Mollie The immediate grantor of plaintiffs was Smith, in Item 4; thence along said line

In Booth v. Terrell, 16 Ga. 20, an instruc-, between them, held in Catterlin v. tion that the loan of a slave by one person Hardy, 10 Ala. 511, to express a clear in. to another for the life of the borrower by tention that the first takers should have a parol agreement that the slave should be only a life interest, and that the remainder returned to the lender or his heirs at the after their death should go to the children death of the borrower vested an absolute lawfully begotten; that the remainder was title in the borrower was held erroneous for vested in the children. the reason, as the appellate court said, that A deed containing the words “do lend to this was not a will, but a gift inter vivos; the said

during his natural life" and the lender manifested no intention of a certain tract of land, and in the habenparting with his property (distinguishing dum “to have and to hold the same with on this ground a number of will cases in the appurtenances thereunto belonging to which the term was held equivalent to the said

his natural life, and at the "give”), and therefore there was no attempt death of the said

unto the lawful to create a remainder or even a reversion heirs of the said

and their heirs, by parol.

executors, administrators, and assigns,' While a majority of the cases included under the rule in Shelley's Case conveys a in this note involve the application of the fee-simple title to the grantee. Edgerton rule in Shelley's Case, it is obvious that the v. Aycock, 123 N. C. 134, 31 S. E. 382. distinctive question here considered is niere- A conveyance, the granting words of ly whether the use of the word “lend" will which were "lease, let, rent and confirm” defeat the application of the rule, assuming to the grantee and his heirs "for the full that in the view of the court, at least, the term of 1,000 years or as long as wood rule would otherwise have been applicable. grows or water runs," was held to convey The general subject of the rule in Shelley's a fee in the use, in Stevens v. Dewing, 2 Vt. Case is discussed in a note in 29 L.R.A. | 411. (N.S.) 963.

III. Wills.
II. Deeds.
In accordance with the rule above stated,

a. In general. the word "lend" or "loan” used in a deed The intention of the testator, which is has been held equivalent to "give” where the determining factor in the construction the grantor indicates an intention to part of wills, generally controls the construction with the property mentioned. Jones v. I to be placed upon the use of the word Jones, 20 Ga. 699. It was accordingly held / "lend" and its derivatives as used in a will. in this case that a deed of gift in which the On the question whether a will was wholgrantor "loaned to his sister

one ly executed, so as to dispense with the nenegro girl

during her natural life cessity for the appointment of an adminisand then to her bodily heirs" did not cre- trator at the death of the life tenant, it ate an estate tail in the grantee, so as to was held in Burch v. Burch, 19 Ga. 174, vest an absolute estate in her under a stat. that a provision in a will, viz., “ I lend to ute, but only an estate for her life. There my beloved wife

the whole of my was a gift over in case of the death of the estate, both real and personal, during her first taker without issue to her brothers natural life or widowhood,” did not pass and sisters "that shall be alive at that any of the property out of the estate dur. time;" the words "at that time” were held | ing the lifetime of the wife, who remained to prevent the creation of an estate tail | unmarried. The will in this case contained in the first taker.

other provisions for the disposition of the In other cases no attention is given to property in case of the remarriage of the the word used, but it is construed as though wife, and the testator carefully distinthe word “give" or "grant" had been used. guished in the use of the words “iend” and

A deed of gift of slaves, conveying the "give.” This was held to show that there slaves as a loan to a husband and wife dur- was no unmeaning distinction with the tes. ing their natural lifetime, and after their stator in the use of these words, but, ipon decease to their children lawfully begotten 'a careful review of the will, it was held

.

[ocr errors]

.

one

[ocr errors]

and along Julian H. Purvis' line and Mrs. where the same obtains, it does so as a rule Ruth Taylor's line and N. P. Taylor's line of property without regard to the intent to a dead elm in Bee branch; thence up of the grantor or devisor. Jones v. Whichsaid branch to the first station; containing ard, 163 N. C. page 243, 79 S. E. 504; Price 190 acres, more or less; and at the death v. Griffin, 150 N. C. page 523, 29 L.R.A. of said James G. Taylor I give and devise (N.S.) 935, 64 S. E. 372;. Edgerton v. Aythe said land to his heirs at law in fee cock, 123 N. C. page 134, 31 S. E. 382; simple forever.”

Chamblee v. Broughton, 120 N. C. page 170, The case states that the James G. Taylor 27 S. E, 111; Starnes v. Hill, 112 N. C. is now living and has two children, and de- page 1, 22 L.R.A. 598, 16 S. E. 1011. fendant contends that, under said clause, In Jones v. Whichard, a very accurate the devisee took only a life estate.

statement of the rule is given with approval It is established by repeated decisions of from Preston on Estates, as follows: "When the court that the rule in Shelley's Case is a person takes an estate of freehold, legally still recognized in this jurisdiction, and, or equitably, under a deed, will, or other evident that the testator did not intend the that the legal estate should not pass. My. title to any of his property to pass out of ers v. Pickett, 1 Hill, Eq. 35. his estate, and therefore the will remained In Deane v. Hansford, 9 Leigh, 256, there unexecuted.

is stated to be no sound distinction between The use of the word "lend” in the clause a bequest of slaves in the language, “I in a will, viz., "I lend unto my grandson

lend to my grandson," and a bea tract of land ; three negroes

quest by words imparting a gift. Now if in case that the said (grandson] A gift viz., “I lend my niece should live to arrive to manhood and beget negro girl and her increase

during heirs lawfully, the above property to him my niece's natural life and at her death to and his heirs forever; (if not) I give and the lawful issue of her body," and in case bequeath the abovementioned property" of the niece dying without issue, over, creover, was held to indicate an intention on ates, at least, a life estate in the niece. the part of the testator to give the proper. Bryan v. Duncan, 11 Ga, 67. ty to this grandson for life as a provision A testamentary provision, viz., “I loan and maintenance, to be enlarged into a fee to my daughter

during her natural in the event of his having issue. Felton v. life and then to her bodily heirs" certain Pillups, 21 N. C. (1 Dev. & B. Eq.) 584. negroes, naming them, creates an estate Consequently, upon his death without is. tail in the daughter, which, by statute, 18 sue, the property went over.

converted into an absolute interest. Jones A testamentary provision, viz., “I do lend v. Jones, 20 Ga. 699. A similar holding to

all my estate, real and personal. appears in Pournell v. Harris, supra, where And it is my will that my estate should be the testamentary provision was: "I lend kept together until the said [one of the to

during her natural life [certain devisees) arrives to twenty-one years of age, ( slave) and at her decease I give the said and then equally divided share and share | slaves and their increase to the heirs of her alike with the said four children to them body lawfully begotten." and their heirs forever," conveys an abso- So, a bequest as follows: I lend to lute property in the several shares to the

L. S. during her natural life, five several legatees after the division takes negroes

these five negroes, with all place. Cox v. Marks, 27 N. C. (5 Ired. L.) | their increase I will to the lawful begotten 361. It is stated that what the testator heirs of L. S. to be equally divided among might have meant by the word “lend” in them at her death,” vests an absolute escase any of the children had died before tate in the first taker. Ewing v. Standefer, the time of division it is useless to inquire, 18 Ala. 400. because it is clear that he intended they A gift in a will in the following language, should have in the first instance an abso- “I lend to my daughter

four nelute property in their several shares after groes (followed by a bequest to another the division should take place.

daughter) during their natural lives and then to the heirs of their bodies," conveys

to the first taker an absolute estate. Myers b. Personal property.

v. Pickett, 1 Hill, Eq. 35.

The word "loan” was treated as equivaIn gifts of personal property the word lent to "give” in Hyman v. Williams, 34 N. “lend” or “loan” is equivalent to the word C. (12 Ired. L.) 92, where a provision, “I "give" or "bequeath" where the testator in- loan to my wife

[certain propdicates a clear intention to part with the 'erty)," with gift over at her death, was entire dominion the property be held to convey a life estate to the wife in queathed. Ewing v. Standefer, 18 Ala. 400; certain personal property, which was all Bryan v. Duncan, 11 Ga. 67; Jones v. Jones, that was in dispute. 20 Ga. 699; Pournell v. Harris, 29 Ga. 736. In Robertson v. Hardy, 2 Va. Dec. 275,

It has been stated that the word "lenil" 23 S. E. 766, it is held that no restriction is equivalent to "rise" in the al crice or of the gift of personal property can be inanyt!: ing to show that the testator intended ferred from the use of the word “loan” in

.

over

[ocr errors]

writing, and in the same instrument there otherwise. Sessoms v. Sessoms, 144 N. C. is a limitation by way of remainder, either pages 121–124, 56 S. E. 687, citing Cox v. with or without interposition of another Marks, 27 N. C. (5 Ired. L.) page 361; estate, of an interest of the same legal or King v. Utley, 85 N. C. page 59 and other equitable quality to his heirs, or heirs of cases. his body, as a class of persons to take in Applying the principles as a pproved and succession, from gener..tion to generation, stated in these cases, we think it clear that the limitation to the heirs entitles the an- plaintiff's grantor, James G. Taylor, took cestor to the whole state.”

a fee-simple estate; the devise giving him It is further held here and elsewhere an estate in the property for life and then that, in the enstri son of a will, the word to his heirs general to take in succession "lend” will be taken to pass the property to forever. which it applies, in the same manner There is no error, and the judgment bethe words "give" and "devise," unless it low is affirmed. is manifest that the testator intended

as

three negroes

one

[ocr errors]

a clause of the testator's will reading: “I A provision in a will, viz., “I loan to my do at my death loan the tract of land on sister

also which I at present reside and known as the one third part of all my land lying in An'dower tract

to my beloved wife derson county, and at her death I give the during her natural life, with all the proper- above property to her lawful heirs of her ty of whatever nature or kind soever it may body," was treated in Lloyd v. Rambo, 35 be," etc.

Ala. 709, as a gift to the sister, remainder It has been stated that where it is ap to the lawful heirs of her body, and thereparent that the testator intended some gift fore to vest the first taker with the abso. by the use of the word "loan," and not a lute property in the slaves, which were the mere loan and sufferance, the gift will be only part of the gift in dispute. treated as absolute unless it is limited by No point is made of the use of the word the context of the will. Parker v. Wasley, "lend” in a bequest of slaves and personal 9. Gratt. 477. It was accordingly held in property in Williamson v. Ledbetter, ? this case that a clause in the will, viz., “I Munf. 521, but it is interpreted as though loan to my daughter

a negro girl the word "give” had been used. A similar and $200 in cash which is her full decision appears in Wade v. Boxley, 5 proportion of all my estate,” which was Leigh, 442. subsequently modified by a codicil to the A clause in a will, viz., "I lend unto my effect that "I loan to my daughter

granddaughter

negro girl $300 more in lieu of a negro girl

during her natural life and at her which I loaned her in my will,” conveyed death I give and bequeath the said negro an absolute estate to the daughter. It was girl

to the lawful issue of her body urged in this case that by using the word that may then be living,” was sustained as "loan” in this bequest, and in other be not creating a limitation too remote, and quests the word "give," an intention to con- was sustained also as against the argument vey a limited, and not an absolute, estate, that it created an estate tail which, under is shown. In answer to this it is stated that the statute, would vest the entire estate the most that can be made of it is that the in the first taker, in Woodley v. Findley, testator had some meaning in the use of 9 Ala. 716. the word "loan” in the bequest in which See Felton v. Billups, 21 N. C. (1 Dev. & it was used different from that which he | B. Eq.) 584; Den ex dem. Harrell v. Hoshad in the use of the word "give" in other kins, 19 N. C. (2 Dev, & B. L.) 479, infra. elauses of his will, but what the meaning But a different construction has been was it is impossible from the record to as placed upon the word “lend” in a will in certain. It is further stated that there is Loving v. Hunter, 8 Yerg. 4. The provision nothing in the will to limit the duration of in question was, “I lend unto my three the estate given to the legatee named in | daughters

to them during their this clause, and therefore nothing to pre- natural lives and then given to the lawvent her from taking an absolute estate. fully begotten heirs of their bodies." In A devise, viz., “All of my estate

holding that the daughters did not take I loan to my wife

during her nat- an absolute estate under the rule in Shel. ural life. My wish is that the property I ley's Case, the court states: “The word have loaned to her, after her death

'lend' is here used, and not the word 'give;' shall be sold” and the money divided be- and although the former word confers the tween the testator's children, was use for life, it may for some purposes be strued the same as if the word "give” had construed to mean the same thing as though been used, it being stated that the word the latter word had been used; yet the use

used the equivalent of "give.” | of the word 'lend' assists in determining Chapman v. Chapman, 90 Va. 409, 18 S., what estate the testator intended his daughE. 913.

ters should take. By the use of the words In certain cases in which the word “lend” | lend during their natural lives,' the inis used, no special emphasis is placed upon tention of the testator is as certainly exthe word.

pressed and as well understood to confer on

.

con

was

as

was

.

them only a life estate as it would have , mainder to her children, and in case she been by the use of any form of superadded died without children or issue of her marwords. This is more especially manifest by riage then living, all the real estate loaned reference to the words which follow these. to her went to the other devisee named. He says, after lending to the daughters for A devise in the following language: “I life and then given to the lawfully-begot- | lend to my daughter Sarah during her natten heirs of their bodies.' He uses here the ural life, and at her decease to be equally word 'given' in contradistinction to the divided between the heirs of her body," word 'lend,' the more conclusively to show held to create an estate of freehold in the that his purpose was that his grandchildren daughter, remainder over to her heirs, so should take the absolute estate, the use of as to bring the devise within the rule in which was bestowed on their mother for life Shelley's Case. Holt v. Pickett, 111 Ala. only.”

362, 20 So. 432. See ROBERSON V. MOORF. In Glover v. Harris, 4 Rich. Eq. 25, the A devise of land as follows: I lend to will provided: “I lend to my loving wife my son

tract of land

durduring her natural life the use of ing his natural life," was held to vest in one half of my land

and five ne- the son a life estate, in Callis v. Kemp, 11 groes.' The will contained a residuary Gratt. 78. It is stated that whether the clause in which "all the property which word "lend" or "give" is used, an estate for possess and have not before bequeathed" | life is vested in the first taker. was ordered to be sold and certain dispo- See Chapman v. Chapman, 90 Va. 409, 18 sition made of the proceeds. The question S. E. 913, supra, where both real and perin the case so far as the use of the word sonal property were involved. “lend" is concerned was whether the wife A similar interpretation has been placed took an absolute estate in the slaves. In upon clauses containing this word without holding that the wife took only a life es- any discussion of the word. 'tate, the court states that the word "lend” Thus, a gift in a will, viz., “I lend unto used in such a connection as this is evidence

all the lands I own

during of an intention to make a limited disposi- his natural life, and after his death 1 give tion; and the words "lend" and "use" and the above-mentioned land to his heirs law. "for life" all harmonize in showing that fully begotten, to them and to their heirs there was no intention to give the property forever," was held to convey an absolute absolutely and forever to the wife.

estate in the first taker under the rule in

Shelley's Case without any discussion as c. Real estate.

to the effect of the word "lend." Den ex

dem. Folk v. Whitley, 30 N. C. (8 Ired. L.) As in gifts of personal property, so in 133. gifts of real property, .the word “lend” or Without any discussion of the meaning "loan” has been held equivalent to "give," of the word "loan," a "loan" to the daugh"bequeath," or "devise.

ter of the testator for her natural life, and After holding that a gift in a will in the after her death to her heirs forever, was language, “I lend unto my grandson

treated under the rule in Shelley's Case as to him and his lawful heirs of his body conveying a fee simple in the first taker. forever," conveyed an estate tail to the King v. Utley, 85 N. C. 59. first taker, which by the statute was con- A devise in the following language, viz.: verted into a fee simple, the court in Ses. “The two houses situated on 14th street, is soms v. Sessoms, 144 N. C. 121, 56 S. E. a lifetime lease it cannot be taken from 687, states that this construction is not af- you nor you cannot spend it, but it is held fected by the use of the word "lend.”. This to insure you something to live on during word is not infrequently used in wills as your lifetime. Fifth: -and at your de synonymous with "give” or “bequeath” or cease if you have lawful heirs then all will devise." It is further stated that there fall to them but if not then my present are instances where from the context or residence to be sold the money to be disexceptional use of the word it has been al- | tributed as follows," was held to convey lowed a different significance, but the gen to the devisee therein named a fee-simple eral rule is that unless it is manifest that, estate. McCann v. Barclay, 204 Pa. 214, 53 the testator did not intend an estate to Atl. 767. pass, the word “lend” will pass the property A disposition of land was made in Robertto which it applies in the same manner as son v. Hardy, 2 Va. Dec. 275, 23 S. E. 766, if the word "give" or "devise” had been as follows: "I do at my death loan the used.

traet of land on which I at present reside This language is approved in Faison v.

to my beloved wife during her natMoore, 160 X. C. 148, 75 S. E. 993, where it ural life.” The court states that under is held that a will containing the following this clause the land was expressly given to language: "I give to ... all my real the wife for life. estate

during her natural life and A will in which the word "lend" was used if she marries and leaves heirs from such by the testator in making a gift of land marriage, to such heirs in fee simple. and personal property was construed withIf she dies and leaves no heirs from such out reference to the use of this word, in marriage, all the real estate loaned her to Den ex dem. Harrell v. Hoskins, 19 N. C. be divided” between certain named devisees, (2 Dev. & B. L.) 479. conveyed a life estate to the first taker, re- A clause reading, “I lend to my daugh

[ocr errors]
[ocr errors]

ter,” etc., was construed as if there had | in consideration of payment of interest dur. been a gift, devise, or bequest, in Moon v. ing life on notes of varying amounts accordStone, 19 Gratt. 130.

ing to age and service to be rendered, is But the intention of the testator is the within the operation of the statute governdetermining factor. When the word ing the transaction of insurance business. "lend” is used in the same clause with "give,” this may be an indication of an

(June 26, 1914.) intention to distinguish between the words.

A testamentary provision, viz.: "I lend RROR to the Court of Appeals for unto my beloved wife, all the lands

decree which I may die possessed of

in during her natural life for her to business of insurance without first securing

ousting respondent from carrying on the support herself and my children which may

license. Affirmed. remain with her on the land, and after the death of my wife, this land to be equally

The facts are stated in the opinion. divided between all my sons or their chil- Messrs. Axline, Betts, & Kerns, for dren,

this [land] I give to my plaintiff in error: sons above, over and above their distribu

Not only the right of contract to bury, tive share of my estate as hereafter be- but also the right to insure, is a commonqueathed to them,” followed by items in law right, and not dependent upon any which reference is made to the land men- franchise or permit; hence, until the intioned as being given to the sons, indicat. ed an intention on the part of the testator dividual's common-law right is taken away that the family, such of them as remained or abridged by some statutory enactment, on the farm, should be supported upon it the right to so contract remains. until the widow's death, with her, and if State ex rel. Richards v. Ackerman, 51 none remained on it with her, then the use Ohio St. 163, 24 L.R.A. 298, 37 N. E. 828. of it should be hers until her death, with

To construe insurance laws as prohibitthe possession and right of possession in ing the individual from engaging in the her until her death. Hudgens v. Wilkins, I insurance business would make them un77 Ga. 555.

constitutional. A gift in the words: “I also loan to my said wife all that portion of my land em

State v. Beardsley, 88 Minn. 20, 92 N. W. bracing my homestead, etc.," found in a 472; Hauser v. North British & Mercantile paragraph of the will in which the testa. Ins. Co. 206 N. Y. 455, 42 L.R.A. (N.S.) tor gave and bequeathed certain personal 1139, 100 N. E. 52, Ann. Cas. 1914B, 263; property to his wife absolutely, was held Robbins v. Hennessey, 86 Ohio St. 191, 99 in Britt v. Rawlings, 87 Ga. 146, 13 S. E. N. E. 319. 336, to convey the land to the wife only for life. "It is difficult to conceive," says the

Messrs. Charles J. Pretzman and court, “why he should have used these dif. Frank Davis, Jr., with Mr. Timothy s. ferent expressions in relation to the sev. Hogan, Attorney General, for defendant in eral kinds of property disposed of by this error: item unless he intended that his wife should The mutual note is a contract of insurhave the slaves and other personalty ab- ance; and the agreed statement of facts solutely and the land only for life.”

shows that respondent is engaged in the inSee Felton v. Billups, 21 N. C. (1 Dev. & B. Eq.) 584.

W. A. E.

surance business.

1 May, Ins. $ 27; Guenther, Life Ins. $ 191; State ex rel. Sheets v. Pittsburg, C. C.

& St. L. R. Co. 68 Ohio St. 9, 64 L.R.A. OHIO SUPREME COURT.

405, 96 Am. St. Rep. 635, 67 N. E. 93;

State ex rel. Coleman v. Wichita Mut. JOHN RENSCHLER, Plff. in Err., Burial Asso. 73 Kan. 179, 84 Pac. 757;

Fikes v. State, 87 Miss. 251, 39 So. 783; STATE OF OHIO EX REL. TIMOTHY S. State v. Willett, 171 Ind. 296, 23 L.R.A. HOGAN, Attorney General.

(N.S.) 197, 86 N. E. 68. 107 N. E. 758.)

It is not lawful for an individual to en(- Ohio St.

gage in the insurance business in the state Insurance burial contracts tory regulations.

State ex rel. Richards v. Ackerman, 51 A contract by an individual engaged in Ohio St. 163, 24 L.R.A. 298, 37 N. E. 828; the undertaking business, to furnish burial Robbins v. Hennessey, 86 Ohio St. 181, 99 Note. — As to what constitutes insurance,

N. E. 319; People v. Loew, 19 Misc. 248, see note to Physicians' Defense Co. v. Coop. | 26 N. Y. Civ. Proc. Rep. 132, 44 N. Y. Supp. er, 47 L.R.A. (N.S.) 290; and later cases,

42. King v. Atlantic Coast Line R. Co. 48 L.R.A. (N.S.) 450, and State ex rel. Fishback v.

Per Curiam: Globe Casket & Undertaking Co. L.R.A.

In February of 1913, the relator, Timothy 1915B, 976 (involving burial insurance). S. Hogan, attorney general of Ohio, filed

[ocr errors]
[ocr errors]

statu. of Ohio.

« PreviousContinue »