32 S.E. 377 | N.C. | 1899
The facts are as follows:
1. Frederick White died in Pitt County in 1892, leaving a last will and testament, duly probated in Pitt County Superior Court, the item of which, material to this case, is as follows:
"Item 2. I lend unto Frances White, my wife, twenty-five acres of land, including all my buildings, and the land to be laid off around the buildings, for and during her natural life or widowhood. And the twenty-five acres I have loaned my wife I give and bequeath unto my *63 granddaughter, Pearcy Jones, daughter of Joseph Jones, to her and her heirs in fee simple, after the death of my said wife."
2. That Pearcy Beddard, defendant, is the Pearcy Jones spoken of in said will.
3. That Frances Beddard is the Frances White, widow of Frederick White, spoken of in said will.
4. That after the death of Frederick White, his widow, Frances, married one Moye, who died, and she afterwards married H. C. Beddard, plaintiff, and she is still living.
5. That said Joseph Jones is guardian of said Pearcy Beddard (52) and claims that as soon as Frances Beddard married, after the death of Frederick White, said Pearcy Beddard became owner of said land in which she is given an interest by said will.
It is agreed, if the Court shall be of opinion that said Pearcy became entitled to possession of said land when said Frances Beddard married, after the death of Frederick White, then judgment shall be rendered so declaring; but if the court shall be of opinion that said Pearcy did not become entitled to possession of said land when Frances Beddard married, after the death of Frederick White, then the court shall adjudge that Frances Beddard is entitled to possession of said land for her natural life, and execution shall issue to carry into effect said judgment.
The party against whom judgment is rendered shall pay the cost of this proceeding. This 7 March, 1898. The devise to the wife "during her natural life or widowhood," by the settled rules of construction, was determinable either upon her death or remarriage, otherwise the words "or widowhood" would be meaningless. 2 Redf. Wills, 219. The widow, having remarried, cannot maintain the action to recover possession. The devise to the granddaughter, the defendant, "after the death of my said wife" cannot take effect till that event, but that cannot avail the plaintiff, who must recover on the strength of her own title, not upon defects in that of the defendant. If there is no provision in the will (the whole of which is not before us) devising the realty, after the remarriage of the widow, until the devise to the granddaughter is to take effect, i. e., at the death of the widow, the realty would go to the heirs at law of the devisor for such interval, and the granddaughter would be entitled in that capacity as sole heir, unless there were others, in which event she would be tenant in common till the death of the widow, when she would become sole owner under the terms of the devise. *64
In any aspect, the plaintiff is not entitled to recover, and upon the case agreed, judgment should be entered in favor of the defendant.
REVERSED.
Cited: Baptist University v. Borden,
(55)
