29 S.E. 875 | N.C. | 1898
Lead Opinion
In May, 1883, James F. Kornegay made and published his last will and testament, and in August of that year he died; that said will, after the death of the testator, was duly admitted to probate in Wayne county, and the executor, W. F. Kornegay, therein named, qualified; that the testator left him sur-ving a widow, Frances' E. Kornegay, and three sons, the said W. F., J. J. and A. U. Kornegay, who are the legatees and devisees mentioned in the will, W. F. being the oldest, and some 50 years of age, and A. U. the youngest and not 21 when- his father, the testator, died; J. J. has since died, and since his death W. F. has died, and A. U. has reached his majority of 21 years.
That since the death of J. J. and W. F., and since the said A. U. reached his majority, the complaint alleges that he has bargained and sold to the defendant Morris a lot in the city of Goldsboro for $300; that the plaintiff executed a bond for title to said lot, and the defendant executed his note for the purchase money, which is now due; that the plaintiff has tendered to the defendant a deed conveying said lot to the defendant, and that the defendant refuses to pay the same.
The defendant answers and says that' he is ready, able and willing to pay for said lot according to the contract, if he can get a clear, indefeasible title thereto,
This makes it necessary that this section 14 of said will shall be construed, so far at least, as to determine the question presented — whether the plaintiff can make a clear indefeasible title to said lot, so contracted for and sold to the defendant. It is stated that W. F. Kornegay died intestate without leaving issue or any lineal descendants, and leaving the plaintiff his sole heir.
The testator gave to his wife, Fanny, considerable property for life, which, in the' 11th clause of his will, he gave to his son W. F. in trust for his sons, John J. and Albert U. after her death.- . And in the 14th item he provides as follows: “If my sons John and Albert should either one of them die without legitimate offspring, my will is, and I do hereby direct that that portion of my estate given to the one so dying shall go to the son .still living, and if both shall die without legitimate offspring, the income arising from both their portions shall go to my wife Fannie E. Kornegay during her life or widowhood, and in the event of the marriage or death of my wife Fanny, then the portion set aside for them to go to my son W. F. Kornegay and his legal representatives. ”
It is manifest from these provisions that it was not within the contemplation of the testator that these limitations should be fulfilled during his life time. It cannot be that, when he provided a guardian for his son Albert, he expected Albert to die in his life time, nor can it be that, when he made a provision for his
The devisees, John J. and Albert U., took cross remainders, and John dying and leaving no issue, his part went to Albert. Galloway v. Carter, 100 N. C., 111; Spruill v. Moore, 40 N. C., 284.
But Albert is still living and has no children, which made the estate of W. P. Kornegay a contingent exec-utory devise. The person (W. F.) being certain, but the event upon which his estate depended, being uncertain, it was such a contingent estate as might be transmitted by descent. 2 Fearne on Remainders, pages 28, 30, 433; Fortescue v. Satterthwaite, 23 N. C., 566. And W. F being dead without issue, and leaving Albert his only heir at law, this contingent estate descended and vested in Albert.
But if Albert dies without leaving issue, the widow, Fanny E., is to have the “income” from the whole estate left John and Albert, until her death' or marriage. This gives her a contingent estate in this property. 29 Am. & Eng. Enc. of Law, 404. Her estate is also contingent, depending upon the death of Albert -without leaving issue. This contingency may never happen, and she may never receive any benefit from this estate.
Error. — Reversed.
Dissenting Opinion
dissenting: It is agreed that in considering the construction of wills the whole instrument must be considered, and that the primary intent of the testator, when it can be seen, governs the case. It appears from the will and the agreed facts that the widow is amply provided for during her life; that the ultimate remainderman, W. F. Kornegay, was over 50 years of age, and was reputed to be a man of large means; that John Kornegay was of feeble intellect, and that Albert was of tender years, was intelligent and of good habits. From these undisputed facts I infer that John and Albert were the prime objects of the testator’s intent. John having died without issue of course his interest survived to Albert.
The principle oi allowing a devise to vest absolutely at the earliest period, consistent with the will, relieves the estate of conditions and avoids the doctrine of perpetuity and executes the main intent of the testator, when not expressly forbidden by words or controlled by peculiar circumstances.
The case of Hilliard v. Kearney, 45 N. C., 221, was well considered and has been followed ever since. The application of the principles of that case is the only question in subsequent cases. There the gift was to five sisters, and ‘ ‘if either of them die without an heir, (construed to mean child or issue) her part to be equally divided among her other sisters.’ It was held that
In one case the will points to the heirs generally and in the other the law would have designated the same class as the ultimate takers of the estate. Davis v. Parker, supra, seems to fit the case before us.
1 take another view. There is certainly no interest left in the testator and no possibility of any reverter to him or his heirs, as was the case in Trexler v. Holler, 107 N. C., 617. The. interest of W. F. Kornegay is a good contingent remainder, the person being certain, and is mot too remote, even if it could not become a vested estate, as my brethren think, until the death of the widow. Baker v. Pender, 50 N. C., 351. It being admitted by the agreed facts, that the plaintiff is the only brother and heir at law of the remainderman I do not see- why the estate in remainder should not descend to the.plaintiff and become vested,. Code, 1281. That would be the same result as that in my first contention, vesting an absolute estate in'the plaintiff. I do not think that the provision that the widow shall have the income of the land during her life, if she should live after the death of the legatees without issue, conveys to her any estate in the land. Burton v. Conigland, 82 N. C., 99.
My conclusion is that, at the death of the testator, the estate vested absolutely in John and Albert and, by the death of the former, his estate survived absolutely to the latter. If that was not so, I am much inclined to the opinion that upon the death of the remainderman without issue, his interest descending upon the plaintiff, his only heir at law, gave him a fee simple estate.
Lead Opinion
In May, 1883, James F. Kornegay made and published his last will and testament, and in August of that year he died; that said will, after the death of the testator, was duly admitted to probate in Wayne County, and the executor, W. F. Kornegay, therein named, qualified; that the testator left him surviving a widow, Frances E. Kornegay, and three sons, the said W. F., J. J. and A. U. Kornegay, who are the legatees and devisees mentioned in the will, W. F. being the oldest, and some fifty years of age, and A. U. the youngest and not twenty-one when his father, the testator, died; J. J. has since died, and since his death W. F. has died, and A. U. has reached his majority of twenty-one years.
That since the death of J. J. and W. F., and since the said A. U. reached his majority, the complaint alleges that he has bargained and sold to the defendant Morris a lot in the city of Goldsboro for $300; that the plaintiff executed a bond for title to said lot, and the defendant executed his note for the purchase money, which is now due; that the plaintiff has tendered to the defendant a deed conveying said lot to the defendant, and that the defendant refuses to pay the same. *124
The defendant answers and says that he is ready, able and willing to pay for said lot according to the contract, if he can get a clear, (201) indefeasible title thereto, but that said lot is a part of the real estate owned by the said James F. Kornegay, and disposed of by him in the fourteenth paragraph of his will; and that the defendant is advised that the plaintiff cannot make and convey to him such title. The widow, Frances E. Kornegay, is still living.
This makes it necessary that this section fourteen of said will shall be construed, so far at least, as to determine the question presented — whether the plaintiff can make a clear, indefeasible title to said lot so contracted for and sold to the defendant. It is stated that W. F. Kornegay died intestate, without leaving issue or any lineal descendants, and leaving the plaintiff his sole heir.
The testator gave to his wife, Fannie, considerable property for life, which in the eleventh clause of his will, he gave to his son W. F. in trust for his sons, John J. and Albert U. after her death. And in the fourteenth item he provides as follows: "If my sons John and Albert should either one of them die without legitimate offspring, my will is, and I do hereby direct that that portion of my estate given to the one so dying shall go to the son still living, and if both shall die without legitimate offspring, the income arising from both their portions shall go to my wife, Fannie E. Kornegay during her life or widowhood, and in the event of the marriage or death of my wife Fannie, then the portion set aside for them to go to my son, W. F. Kornegay, and his legal representatives."
It is manifest from these provisions that it was not within the contemplation of the testator that these limitations should be fulfilled during his life time. It cannot be that, when he provided a guardian for his son Albert, he expected Albert to die in his life time, nor can it be that, when he made a provision for his wife, to be void upon her (202) marrying, he could have expected her to marry during his life time. So that Hilliard v. Kearney,
The devisees John J, and Albert U. took cross remainders, and John dying and leaving no issue, his part went to Albert. Galloway v. Carter,
But Albert is still living and has no children, which made the estate of W. F. Kornegay a contingent executory devise. The person (W. F.) being certain, but the event upon which his estate depended being uncertain, it was such a contingent estate as might be transmitted by descent. 2 Fearne Remainders, pp. 28, 30, 433; Fortescue v. Satterthwaite,
But if Albert dies without leaving issue, the widow, Fannie E., is to have the "income" from the whole estate left John and Albert, until her death or marriage. This gives her a contingent estate in this property. 29 A. E. Enc., 404. Her estate is also contingent, depending upon the death of Albert without leaving issue. This contingency may never happen, and she may never receive any benefit from this estate. But if Albert should die, without leaving issue, before she dies (203) or marries, she may then enforce the collection of the rents arising therefrom, upon or against the lot itself, as this income would be a lien on the property itself. Gray v. West,
Error. Reversed.