5 N.C. 466 | N.C. | 1810
From Chatham.
We are of opinion that the daughter, Elizabeth, having survived her father, the donor, the property in the negro girl vested absolutely in her at his death, and that the plaintiffs are entitled to judgment.*
Cited: Sutton v. Hollowell,
The case of Roberts v. Polgrean, 1 Hen. Black., 536, illustrates the above principle, and shows that the cases of Tims v. Potter and Duncan v.Self do not militate against the rule of the common law which forbids the creation of future interests in a chattel after a life estate therein, except by executory devise or by deed of trust. In that case the limitation of a term was, "to Mary Rawles, during her natural life, with remainder to her son William Rawles, and his issue lawfully begotten; and in default of issue of said William Rawles, then to Elizabeth Polgrean (the defendant), daughter of the said Mary Rawles, during her natural life, with remainder over." Mary Rawles conveyed the premises during the remainder of the term to her son William Rawles, his executors, administrators, etc. William Rawles then by deed of indenture conveyed the premises to "Margary Coles and her heirs, immediately after the death of him, the said William, to hold the same to her heirs forever." William Rawles survived Margary Cole, and died intestate and without issue, and administration on his estate was granted to Elizabeth Polgrean (the defendant). Margary Cole, died intestate, and administration on her estate was granted to her daughter, Mary Roberts. The suit was brought by Mary Roberts, as administratrix of the estate of Margary Cole, to recover the possession of the leasehold premises, claiming under the deed made by William Rawles to Margary Cole; and two points were decided by the Court:
(1) That the deed from William Rawles to Margary Cole must be construed to be a present gift to the wife, in case she survived her husband, to take effect in possession on that event; and that William Rawles, the donor, having survived Margary Cole, the donee, the whole interest in the term survived, or rather remained in him.
(2) That this interest vested, upon William Rawles' death, in hisrepresentative. Elizabeth Polgrean was the person to whom the term was limited originally in default of issue of William Rawles; yet the Court said she could claim nothing under this limitation, but held the term in her character of administratrix of William Rawles' estate.
This case shows that in all such cases as Tims v. Potter and Duncan v.Self the donor remains possessed of his former absolute estate in the chattel; that his estate therein is not abridged, by the gift, from an absolute interest to an interest for life; that the donee takes by the gift neither a vested nor contingent remainder, but a mere possibility, which may take effect or not, as the donee happen to survive or not survive the donor.
This case seems also to recognize the rule that by deed (not of trust) a chattel cannot be limited over after an estate for life, and *318 that the estate for life absorbs the entire interest in the chattel. It would seem that it was upon the operation of this rule Elizabeth Polgrean, the defendant, was adjudged to hold the term in her character of administratrix of William Rawles' estate, and not in her own right under the ulterior limitation contained in the first deed. For, by the first deed, the term was limited "to Mary Rawles during her natural life," and then over to William Rawles, and his issue lawfully begotten, and, in default of issue of said William Rawles, to Elizabeth Polgrean during her natural life," and is the same as without issue, the term would have belonged to Elizabeth Polgrean under this limitation had not Mary Rawles,the donee for life, taken the absolute interest; for the limitation over is not too remote, it being to take effect within the compass of a life in being, it being "to Elizabeth Polgrean during her natural life," and is the same as the Duke of Norfolk's case. The Court held that Elizabeth Polgrean could claim nothing under this limitation. Mary Rawles, the donee for life, conveyed her interest in the term to her son William Rawles, and under this conveyance he became possessed of the entire interest, and Elizabeth Polgrean having administered on his estate, she was adjudged to hold the term as his administratrix.
3. The courts may have proceeded upon the ground that the reservation for life was inconsistent with the gift, and therefore void. This was the view taken by this Court of such a reservation, in the case of Vass v.Hicks,
(468)