148 S.E.2d 546 | N.C. | 1966
J. Roscoe LAWSON and wife, Elizabeth M. Lawson, Ina Rose Lawson Denning and husband, Bruce Denning, J. Alva Lawson and wife, Lizzie B. Lawson, and Sadie Lawson Long, Widow, Petitioners,
v.
William LAWSON and wife, Betty Jan Lawson, Leo Harold Lawson, unmarried, Kenneth Bryan Lawson and wife, Mrs. Kenneth Bryan Lawson, Bonnie Jewel Lawson, unmarried, and Barbara Ann Lawson West and husband Hubert West, Respondents.
Supreme Court of North Carolina.
*547 David M. & W. Earl Britt, Fairmont, for petitioners appellees.
Walter Clark, Jr., Greensboro, for respondents appellants.
SHARP, Justice.
Respondents contend that at the death of the testator, J. Rad Lawson, the six whole brothers and sisters of the life tenant, all of whom were then living, took a vested remainder in the land, and that they, as children of the two whole brothers who predeceased Opal Lawson Long, inherited their interest. The law, however, is otherwise.
This case presents a typical example of a contingent remainder.
"`A devises to B for life, remainder to his children but if he dies without leaving children remainder over, both the remainders are contingent; but if B afterwards marries and has a child, the remainder becomes vested in that child, subject to open and let in unborn children, and the remainders over are gone forever. The remainder becomes a vested remainder in fee in the child as soon as the child is born, and does not wait for the parent's death, and if the child dies in the lifetime of the parent, the vested estate in remainder descends to his heirs.'" 4 Kent's Commentaries, p. 284 quoted in Blanchard v. Ward, 244 N.C. 142, 146, 92 S.E.2d 776, 779.
In Watson v. Smith, 110 N.C. 6, 14 S.E. 649, testator devised land to J for life, and at J's death to such child or children of his that might then be living, but should he die without issue, then to G, W, H, and O in fee. The Court held that the limitation to G, W, H, and O, was a contingent remainder. "Alternative remainders limited upon a single precedent estate are always contingent. Such remainders are created by a limitation to one for life, with remainder in fee to his children, issue, or heirs, and, in default of such children, issue, or heirs, to another or others. * * *" 33 Am. *548 Jur., Life Estates, Remainders, etc. § 148 (1941), citing Watson v. Smith, supra.
Clearly the interests of the whole brothers and sisters was contingent and could not vest before the death of the life tenant, for not until then could it be determined that she would leave no issue surviving. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341. "Where those who are to take in remainder cannot be determined until the happening of a stated event, the remainder is contingent. Only those who can answer the roll immediately upon the happening of the event acquire any estate in the properties granted." Strickland v. Jackson, 259 N.C. 81, 84, 130 S.E.2d 22, 25. Respondents' parents, having predeceased the life tenant, could not answer the roll call at her death.
The judgment of the court below is
Affirmed.
MOORE, J., not sitting.
