Epting v. Mayer

323 S.E.2d 797 (1984)

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Nature of the Case

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Facts

Mahalie Cummings died in 1939 leaving four children, P, Eula, J. Cornelius, and Quincy A. P is the only living child. Eula died unmarried and without children. J. Cornelius was survived by three children and Quincy A. was survived by five. P brought this action naming her eight nieces and nephews as defendants and asked the court to define 'the extent and nature' of her title under Item V. Item V states: I will, devise and bequeath unto my two daughters, Eula Epting and Chloe Epting, all real estate of which I may die seized and possessed, to have and to hold in fee simple absolute and in case of the death of either of my said two daughters, then to the survivor of the two, and in the event my said two daughters should die without issue, either before or after my death, then and in that event the said property shall go to my two sons, J. Cornelius Epting and Quincy A. Epting, share and share alike, and in case either or both of my said sons should die before my said two daughters, then and in that event, the child or children of either or both of them shall take the portion their parent or parents would have taken if they had been alive at the said time. The trial court found Mahalie Cummings gave P a fee simple estate and further found the language of defeasance in the same sentence repugnant to the conveyance. Ds appealed.