175 N.C. 525 | N.C. | 1918
Plaintiff Bell, holding the land under a deed of trust to secure $1,770, conveying to him the title of Marie Anna Glover, sold
On present action, instituted to recover purchase money, defendant, admitting that plaintiff had sold pursuant to the terms of the deed, and that the title offered was that of Marie Anna Glover, grantor in the deed of trust, contended that said title was defective in that the grantor only had a defeasible fee in said land and on facts stated in the further defense as follows: That the land was formerly owned by F. H. Glover, who died some time in 1888, leaving him surviving his widow, Laura Amanda Glover, and their one child, Marie Anna Glover, grantor in plaintiff’s deed; that said F. H. Glover, by his last will and testament, in the fifth and sixth items of the same, made disposition of the property as follows:
“Fifth. After 'the payment of my just debts aforesaid, I give and bequeath half of all my estate, real and personal, to my beloved wife, Laura Amanda Glover, for and during the term of her natural life; at her death of what may remain, to such child or children as may survive me by her, to them and their heirs forever. I give, devise and bequeath the other half of all my estate, real and personal, to any child or children that may survive me by my beloved wife, Laura Amanda Glover, upon their becoming of age or marriage, share and share alike, to them and their heirs forever.
“Sixth. In event of my dying and no child or children by my beloved wife, Laura Amanda Glover, live to become of age or marriage, or die without heirs, I then give, devise and bequeath all my estate, real and personal aforesaid, to my beloved wife, Laura Amanda Glover, during her natural life, and at her death what may remain to Francis Glover, son of my brother, Joseph E. Glover, of Colleton County, State of South Carolina, to him and his heirs forever.”
That Laura Amanda Glover, the widow, died in the latter part of 1904, and in 1905 said Marie Anna Glover, now about 50 years of age and unmarried, executed the deed of trust under which the sale was had and defendant bought.
On these, the controlling facts relevent to the question presented, we concur in his Honor’s view that the title offered is a good one and no valid defense to plaintiff’s action has been alleged.
Our statute, Revisal, sec. 1581, provides that “every contingent limitation by deed or will made to depend upon the dying of any person without heirs or issue, etc., shall be held and interpreted a limitation to take effect when such person shall die not having such heir or issue
In ascertaining whether there is an intent in the face of the will or deed to fix an earlier period when the estate shall become absolute, we have held in numerous cases that the instruments; should be construed in reference to the recognized principles that the law favors the early vesting of estates and that the first taker is ordinarily to be regarded as the primary object of the testator’s bounty, and more especially so when such taker is a child or lineal descendant. Bank v. Murray, 175 N. C., 94, S. E., 665; Dunn v. Hines, 164 N. C., 113.
Considering the question presented in view of these positions, we are of opinion that the will, on its face and under the admitted facts, clearly confers on Marie Anna Glover, the testator’s only child and heir at law, an unqualified estate in fee simple and that, under its provisions and on the death of her mother, she was to have all the property in absolute ownership, either on her becoming of age or on her marriage or on her death leaving heirs in the sense of children or offspring. Harrell v. Hagan, 147 N. C., 111; Fairley v. Priest, 56 N. C., 383.
In Item 5, standing alone, the effect of the will is to confer on this child all of his property in absolute ownership, subject to a life estate in the wife as to one-half. In Item 6 he annexes a qualification by which the estate is limited over, but carrying his property, as it does, to collateral relations, it is not to be operative if his own child, the primary object of his bounty, becomes 21 or marries or, as stated, dies leaving children. The principle applicable is stated in 40 Oye., p. 1506, as follows: “When a gift over, in case of death without issue, is accompanied by a gift over in case of death before arriving at a certain age, the dying without issue will generally be restricted to a dying without issue before arrival at the age specified, to aid which the word ‘or’' may be construed as ‘and.’ ” And this statement of the principle has been approved in many well considered cases here and elsewhere. Ham v. Ham, 168 N. C., 486; Parker v. Parker, 46 Mass., 134-137.
In this last citation the position apposite is stated as follows:
*529 “Tbe manifest object of tbe testator was, we tbink, tbat if tbe son wbo was tbe first object of bis bounty should die without leaving children to take after him, and whilst be was under age, so that be could not make any disposition of tbe property on account of tbe incapacity of nonage, then tbe testator intended to make disposition of it himself. But if tbe son should leave no children, but still if be should arrive at an age at which tbe law would allow him to dispose of real estate by bis own act by deed or will, then it was intended tbat tbe gift to him should be absolute, and tbe devise over would fail.”
In tbe case before us, tbe change suggested or authorized by these cases does not seem to be required, for tbe two items of tbe will, to our minds; clearly mean “tbat this property is to go to our child, Marie Anna Glover, to be hers in absolute ownership if she becomes 21 years of age or if she marries or dies leaving heirs living at her death in the sense of children or offspring.” In tbe case of Dawson v. Emmett, 151 N. C., 543, cited and relied upon by defendant, there was no intervening period referred to and no provision of tbe will tending to show tbat tbe estate was to become absolute at any time before tbe death of tbe first taker.
"We find no error in tbe record and tbe judgment sustaining tbe plaintiff’s demurrer will be
Affirmed.
