53 S.E. 130 | N.C. | 1906
The pertinent facts presented by the record are as (403) follows: Caroline Bonner died, having made her last will and testament, disposing of certain real and personal property, and the parties, plaintiff and defendant, are claimants under said will. The rights of the parties depend upon the following items in said will:
"I give the residue of my real estate to my beloved nephew, Roscoe Hooker, upon his becoming 21 years of age, and lend the same to my beloved sister, Ella Bonner, until my nephew, Roscoe Hooker, is 21 years old. 6. I lend to my beloved sister, Ella Bonner, the mule and other personal property upon the farm in trust for Roscoe Hooker until he becomes 21 years old. 7. I give to my beloved nephew, Roscoe Hooker, the mule and any other personal property that may be upon the farm."
Roscoe Hooker, the nephew, died after the death of Caroline Bonner and before becoming 21 years of age, and the plaintiffs are the heirs at law and personal representatives of said Roscoe Hooker. The defendants are the heirs at law and personal representatives of Caroline Bonner, the testatrix, including Ella *300 Hooker, who is one of the heirs at law and next of kin of Caroline Bonner, and is also the Ella Bonner mentioned in the items of said will.
On these facts the question submitted was as to the ownership of the real property in item 5 and of the personal property mentioned in items 6 and 7 of the will, and thereupon the court adjudged that the plaintiffs, the heirs at law of Roscoe Hooker, are the owners of the real property in item 5, and the personal representatives of said Hooker are the owners of the personal property in items 6 and 7, from which judgment the defendants excepted and appealed.
The words "on or upon," when affecting the quality of an estate in reference to the time of its vesting or enjoyment, are substantially synonymous with "when." Adams v. Williams, 2 Watts S., 227; Wormath v.McCormick, 51 Pa. St., 504. In bequests of personal property these words usually import a condition, and, unless explained or controlled by some expressions or other provisions of the will, they are annexed as conditions precedent to the substance of the gift and render the interest contingent. This has been the doctrine in the English courts since the case of Hansomv. Graham, 6 Vesey, 239, and is well established here. Giles v. Franks,
The distinction has no practical bearing on the case before us, and it is, therefore, not desirable to dwell upon it, nor is it necessary to determine if the same now exists, for all of the authorities are agreed that both as to real and personal property, "when and upon" may be so explained and controlled by other expressions and provisions of the will, that they do not import a condition at all, but simply refer to the time of enjoyment, and that the interest conferred will vest at the testator's death to be possessed and enjoyed at the time indicated. In 1 Roper on Legacies, 386, the doctrine is thus expressed: "But *301
all these and similar words may be so explained and controlled by the context of the will as not to prevent the legacies from vesting before the happening of the events upon which they are payable. In such instances, the intention of the testator's will predominates over technical words and (405) expressions, when it is declared and appears from a sound rational construction of the will." And the decisions in this and other jurisdictions support this doctrine. Guyther v. Taylor,
In pursuance of the principle above stated, the decisions have established that where an estate is bequeathed or devised to one upon his becoming 21 years of age or when he becomes 21, and in the meantime the property is given to a parent, guardian or trustee for the legatee's benefit, in such case the interest will vest at the death of the testator. Roper, supra, 387; Green v. Green,
Applying these principles to the case at bar, they are decisive in favor of the ruling of the lower court.
As to the personal property, the entire intervening interest is given to a trustee for Roscoe Hooker until he becomes 21 years of age, and then to him absolutely; and to the real estate, the intervening interest is given to Ella Bonner until, etc.
Transposing the words in item 5 of the will, the reading of the same would be: "I lend my real estate to Ella Bonner until my nephew, Roscoe Bonner, is 21 years of age, and upon his becoming 21 years of age the property is devised to him," and constitutes a vested remainder.
In Words and Phrases, Judicially Defined, vol. 8, p. 7493, the principle is stated as follows: "When used as a devise of a remainder limited upon a particular estate and terminable on an event which may necessarily happen, `when' will be construed to relate merely to the time of enjoyment of the estate and not to the time of vesting" — citing numerous authorities.
The facts stated in the case agreed do not disclose whether the period has arrived when Roscoe Hooker would have attained the age of 21, had he lived; but the authorities (407) seem to hold that in a case like the present, on the death of the remainderman, the previous disposition of the interest terminates, and the heirs at law and next of kin of the remainderman have a right to the immediate enjoyment of the property. 1. Fearne on Remainders, 244; Mansfield v. Duggard, 1 Eq. Abridged Cases, 195, cited with approval in Johnson v. Baker,
Affirmed.
BROWN, J., did not sit on the hearing of this appeal. *303