61 N.C. 493 | N.C. | 1868
The defendant had theretofore conveyed land to the plaintiff in fee, covenanting that he was seized in fee simple, and had the right to convey in fee with an indefeasible title. The action was brought for an alleged breach of these covenants.
The defendant claimed title under the will of Lewis Whitfield who had died in 1850. In this will the land in question was devised to the defendant with the following limitations: "And in the event of the death of the said Franklin Whitfield leaving no heir of his own body, then in that event the above described lands and other property shall descend to the three sons of Lewis Whitfield, dec'd., Hazard Whitfield, Cicero Whitfield and Lewis Whitfield, or the survivor of them; in case the last survivor of the sons of L. S. Whitfield, dec'd, should die leaving no heir or heirs of his own body, the said lands or real estate shall be equally divided between all my grand children." After the death of the testator, Lewis Whitfield, named above as devisee, died without issue, leaving Hazard and Cicero Whitfield his only heirs. Thereupon (494) they, before the conveyance by the defendant to the plaintiff, conveyed in fee to the defendant.
At the time of the testator's death and also at that of the conveyance there were other grandchildren than those above named; and of those above named Hazard alone has children.
Upon the above facts submitted to him as the case agreed, his Honor gave judgment pro forma for the defendant, and the plaintiff appealed. We are of opinion that the judgment rendered in the court below upon the case agreed is erroneous and must be reversed. The devise of the land in question to all the testator's grandchildren is an executory devise alternative to that to the testator's grandsons, Hazard Whitfield, Cicero Whitfield and Lewis Whitfield, or the survivor of them, both depending at present upon the death of the first devisee, B. Franklin Whitfield, "leaving no heirs of his own body." Until the defendant, B. Franklin Whitfield, shall die leaving no children or other descendants, it will necessarily remain uncertain whether the estate in the land will vest in the first or second class of devisees. It follows that the conveyance made by the defendant, though supported by the deeds made to him by Hazard and Cicero Whitfield, the survivors of the first class of executory devisees, cannot transfer a title free from the *379 claim of the testator's grandchildren, who compose the alternative class of executory devisees. See Fearne on Remainders, 373; Winder v. Smith, 2 Jones, 327.
Judgment reversed and judgment for the plaintiff.
PER CURIAM. Judgment reversed.
Cited: Whitfield v. Garris,
(495)