81 N.C. App. 433 | N.C. Ct. App. | 1986
Lead Opinion
We believe the superior court correctly interpreted the will of Mary D. Hodges. Under the contested provision Luna Davis Newsome was to receive a one-half undivided interest in the property. She did not survive the testatrix and this legacy lapsed. The lapse was not saved by G.S. 31-42(a) because Luna Davis Newsome’s heirs would not have taken under the Intestate Succession Act had there been no will. Stevenson v. Trust Co., 202 N.C. 92, 161 S.E. 728 (1932).
Simon Peter Davis survived the testatrix and he received a remainder interest after the life estate of Walter Hodges, Jr. “An estate in fee simple determinable ... is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple and provides that the estate shall automatically expire upon the occurrence of a stated event . . . .” [Citation omitted.] Charlotte Park and Recreation Commission v. Barringer, 242 N.C. 311, 317, 88 S.E. 2d 114, 119 (1955). In this case Simon Peter Davis received a fee simple estate to one-half the remainder interest in the property which by the express terms of the will expired when he died before Walter Hodges, Jr. The will provided that this interest would then shift to Luna Davis Newsome. Luna Davis Newsome was not living at the time Simon Peter Davis died and the shift failed.
There is not a residuary clause in the will of Mary Davis Hodges. The lapsed legacy of Luna Davis Newsome and the possibility of reverter of the fee simple determinable estate of Simon Peter Davis passed to the heir at law of Mary Davis Hodges at the time of her death. This was Walter Hodges, Jr. When Walter Hodges, Jr. died his heirs at law came into possession of the property.
The appellant asks us to apply several canons of construction and hold that the will disposes of the entire estate of Mary Davis Hodges so that Bettie A. Davis is the owner of this property. The
Affirmed.
Concurrence Opinion
concurring in the result.
While I agree with the result reached here I would reach that result through a different analysis. In my opinion the trial court erred in concluding as a matter of law that the devise and bequest to Simon Peter Davis constituted a fee simple determinable estate subject to an executory interest.
Under the terms of paragraph I of the will, the testatrix’s husband, Walter Hodges, Jr., received a conventional life estate in the homeplace and all personal property of Mary Davis Hodges. Under the terms of paragraph II, Simon Peter Davis and Luna Davis Newsome received remainder interests in fee simple absolute in any property remaining after the death of the life tenant. “An estate in remainder is an estate limited to take effect in possession immediately after the expiration of a prior estate created at the same time and by the same instrument.” Power Co. v. Haywood, 186 N.C. 313, 317, 119 S.E. 500, 502 (1923). Remainders are classified as either vested or contingent. Wiggins, Wills and Administration of Estates in North Carolina Section 280 (2d ed. 1983). The question then becomes how to classify these remainder interests. A contingent remainder is an estate subject to a condition precedent such as the happening of an event which is uncertain and may never happen or when those who are to take in remainder are unascertainable. Id. A vested remainder is one
In my opinion the remainders to Simon Peter Davis and Luna Davis Newsome were vested remainders subject to complete de-feasance or divestment. The first sentence of paragraph II gives a vested interest to both remaindermen. The second sentence is added divesting the remainder given in the first sentence. By the second sentence, the testatrix required that both remaindermen survive the life tenant and each other. The law favors the early vesting of estates and remainders will be deemed to vest at the death of the testatrix unless the will expressly provides for a later time. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E. 2d 341 (1942). Adverbs of time such as “when,” “thereafter,” “then,” “after” and adverbial terms of time such as “at the death of’ and “upon the death of’ the life tenant relate to the time of enjoyment and not the time of vesting of the estate. Id. “The intent to postpone the vesting of the estate must be clear and manifest and not arise by mere inference or construction.” Id. at 424, 20 S.E. 2d at 343. In my opinion the language of the second sentence in paragraph II of the will serves to create a condition subsequent which, if it occurred, would completely divest the vested remainder. It does not expressly provide that the remainders were to vest at the death of the life tenant. Therefore, the remainders vested, if at all, at the death of the testatrix, subject to being completely divested if the remaindermen did not survive the life tenant and each other.
Luna Davis Newsome predeceased the testatrix, her remainder interest never vested and the trial court properly found that her interest lapsed. Simon Peter Davis survived the testatrix and at her death his remainder interest vested subject to being completely divested if he failed to survive the life tenant, the condition subsequent created by the second sentence in paragraph II of the will. Simon Peter. Davis predeceased the life tenant and as a result his vested remáinder interest was completely defeated. At the death of the life tenant, the property remaining, both real and personal, reverted to the estate of the testatrix by operation of law. Wiggins, supra at Section 279. The will contained no residu
Accordingly I concur in the result which affirms the judgment of the trial court.