56 N.C. 348 | N.C. | 1857
Mrs. Rosa A. Troy, by her will bequeathed in the first clause thereof as follows:
"I give and bequeath to my grand-son Thomas Lance, twenty shares of stock in the Bank of the State of North Carolina; also twenty shares of stock in the Bank of Cape-Fear; also four notes at interest in South Carolina, amounting in the whole to three thousand three hundred dollars; also four hundred and thirty-five dollars at interest in North Carolina; also my negro boy named James (son of Molly); to him the said Thomas Lance and his heirs forever; with all increase and profits arising therefrom. Should my grand-son die before he arrives at the age of twenty-one, or should he die intestate after that age, leaving no issue, then, and in that case, it is my will that the above property bequeathed to him, shall be equally divided among the children of my daughter Anne Caroline Hall, in manner following: to Robert Troy Hall and Thomas C. Hall, their parts absolutely; but the three parts of portions of Mary W. Hall, Rosanna Hall and Harriet Elenor Hall, I give and bequeath to my sister Harriet H. Strong, her executors and administrators, in trust, for the use and benefit of said Mary W. Hall, Rosanna Hall and Harriet Elenor Hall, respectively."
In the sixth clause of the will, the testatrix directs that certain tracts of land, town lots and slaves shall be sold by her executrix, and then provides as follows: "The money arising from these several sales, I wish divided into six equal parts, or portions, for my six grand-children, viz: one portion for Thomas Lance, one for Robert T. Hall, one for Thomas C. Hall, one portion or sixth part for Mary W. Hall, one for Rosanna *350 Hall, and one for Harriet Elenor Hall respectively — the three girls' parts to be held in trust, for their use and benefit, by my sister Harriet H. Strong, to whom I give and bequeath it for that purpose; should Thomas Lance die while a minor, or after coming to the age of twenty-one, leaving no will nor issues, then his sixth part shall be divided among my other five grand-children."
After having qualified as executrix, and having proceeded to some extent in discharging the duties of that office, and as special trustee for Mary W. Hall and her sisters, Mrs. Strong, upon an application to the Court of Equity of Anson county, was released from the trust aforesaid, and Anne C. Hall, the mother of the said Mary, Rosanna and Harriet Elenor, was appointed trustee in her place. Thomas Lance, the legatee, being a person of weak mind and incapable of managing his affairs, upon a like application to the Court of Equity aforesaid, the defendant Thomas Robinson was appointed a receiver for and in behalf of the said Thomas, to whom Mrs. Strong, the executrix, paid over the whole of the legacies coming to the said Thomas under the above bequests.
Thomas Lance died in 1857, after having arrived at full age, but without leaving any issue, and without having made a will, and the bill is filed by the contingent legatees in remainder against the receiver and against the personal representative of the said Thomas, praying that the said fund, with its increase and accumulations from dividends, interest on money and profits, shall be paid to them.
During the life of Thomas Lance, one of these contingent legatees, Harriet Elenor Hall, intermarried with Wright Huske, and died in the life-time of the taker of the life-estate. Her husband, the said Wright Huske, administered on the estate of his wife, and is a party plaintiff in this suit. He insists that he is entitled to one sixth part of the fund limited to his wife.
The receiver, Thomas Robinson, and the administrator of Thomas Lance, answered; the former stating the exact amount and condition of the fund in his hands, and the other contending, *351 first, that the first taker, Thomas, was entitled to the entire property in the legacies above mentioned, and that therefore the limitations in remainder to the plaintiffs, never vested. And 2ndly. That if these limitations in remainder should be sustained, he contended that the accumulations to the estate of the said Thomas, from dividends of bank stock, and from interest on money, c., are no part of the fund sought by the plaintiffs, but belonged to the estate of the said Thomas. 3rdly. It was contended that Harriet Elenor Huske having died before the contingency happened, upon which these legacies in the remainder vested, that her representative is not entitled to recover.
The cause was set down for hearing upon the bill, answers and exhibits, and sent to this Court by consent. Where a fee is limited upon a fee by way of executory devise, or bequest, if a general right to dispose of the property is given to the taker of the first fee, such right is inconsistent with the existence of the second fee, and the consequence is that the limitation over of the second fee is inoperative and void. See Newland v. Newland, 1 Jones' Rep. 463, where the subject is fully discussed.
The specific property mentioned in the first clause of the will of Rosa Troy, and the one sixth part of the sale of the land and negroes to be sold by the sixth clause, is given to Thomas Lance, with a limitation over to Robert, Thomas, Mary, Rosanna and Harriet Hall, in the event that Thomas Lance should die before arriving at the age of twenty-one, or if he arrives at that age, in the event of his dying intestate and without leaving issue. He arrived at the full age, but died intestate and without leaving issue. The first question is, did the limitation over take effect, or is it void?
The counsel insist that it is void, on the ground, that it is inconsistent with the right of Thomas Lance to dispose of the *352 property by the will, which right is implied from the fact, that the limitation over is in the event of his dying intestate.
We do not assent to the proposition. The rule stated above requires that the right of disposition given to the first taker shall be general, so as to be, to all intents and purposes, inconsistent with any estate or interest in the second taker. Here, the right of disposition is limited. It can only be made in one mode, to wit, by will. So that the entire estate of the testatrix was not consumed by the gift to the first taker. There was left an interest, or possibility of interest, depending on the uncertain event of the first taker dying before he arrived at age, or after he arrived at age, without issue and without making a will; which possibility of interest the testatrix could limit over to third persons, under the doctrine of executory bequests. The only difference between the present case and the ordinary cases of conditional limitations and executory devises and bequests is, that, here, the future contingent estate is made to depend not only upon the event of the death of the taker of the determinable fee under age, and if of age without leaving issue, but upon the additional event of his dying intestate, so as to make three instead of one, or two, contingencies; but there is no inconsistency between the existence of this contingent estate and the estate of the first taker; for, in order to make an absolute inconsistency, which the rule requires, the first taker must have the absolute estate, or a general power of disposition, so as to leave nothing in the testatrix capable of being given over to a third person. We are of opinion that the limitation over was valid.
2nd. Harriet Hall intermarried with Wright Huske, and died in the life-time of Thomas Lance, leaving, her surviving, her husband and one child. Her interest, under the executory bequest, was transmissible to her personal representative; because the person was certain. Where that is the case, it is well settled that the contingent remainder, or executory devise, or bequest, is transmissible by descent, or by succession.
3rd. Does the property given to Thomas Lance as distinguished *353 from the dividends of bank-stock, interest upon the money, c., alone pass under the limitation over, or does such part of the dividends, profits,c., as was not used by him, also pass as incident to the principal? The words are: "then, and in that case, it is my will that the above property bequeathed to him shall be equally divided," c. We can see no ground for the position that the dividends and profits accruing while he owned the property, did not become his absolutely. It is true, after giving him the property, it is added "with all increase and profits arising therefrom." These words are superfluous. The increase and profits would have belonged to him any how, and they cannot be allowed the effect of attaching the dividends and profits to the property, so as to subject them to the limitation without manifest violence to the intention. For if so, then the primary object of the bounty of the testratrix, in respect to this property, would be left to starve, for the purpose of providing an accumulating fund for the secondary objects of her bounty.
To meet this difficulty, it was suggested that only so much of the dividends and profits as were not used by Thomas Lance, should pass with the property.
There is no intimation of any such middle ground contained in the will. Either all the profits pass, or none; unless we undertake to make a will for the testatrix. Our opinion is that the accrued dividends and profits belong to the personal representative of Thomas Lance.
PER CURIAM, Decree accordingly.