*1 IN THE SUPREME COURT. Young. v. Chuech of the tbis Court But for the errors upon exception. ruling out there must be a pointed New Trial. CHURCH YOUNG.
METHODIST PROTESTANT (Filed February 18, 1902.) Code, %Ufi, ESTATES —Conditions—Deeds—Wills—The Secs. land, subject to be Where a church receives an absolute fee only by condi- defeated the breach of grantor tion is and a not broken until after the death of the daughter daughter, neither nor the death, land can estate at the time of their inherited, be willed breach of the condition the goes grantor. to the heirs-at-law of the the Methodist Protestant Church Henderson ActioN and others Jas. R. heard against Young others, by Judge Coble, L. Term, 1901, A.. May Court Superior. From a for VaNce County. judgment de- plaintiffs, the fendants appealed.
T. T. R. Hicks, McCoin, J. Harris and 8. for the plain- tiffs.
T. M. Pittman for the defendants. C. Zollicoffer, C. J. On the 21st in con September, 1880, Furches, sideration of dollar, land to “D. E. Geo. A. controversy Harris and John E. trustees of the defendant and to their church, succes sors in office, which to build a church worship God,” full Almighty warranty against claim all But he persons whatsoever. provided if said church said lot in man “discontinue occupancy ner and the aforesaid, then this shall be null void,
Chuecii *2 said lot or shall revert parcel of said W. A. Har- ground ris and beirs and forever.” assigns
Tbe defendants erected a cburcb on said lot soon thereafter, and continued to and use the same as a wor- occupy place until ship, time hav- December, 1900, which their church, increased until the ing afford suitable ac- building commodation for the defendants decided congregation, build a new and for had church; the reason that the location become undesirable for a and for the reason that the church, defendant the lot be to sell it thought more valuable would with the on it than it down would be tear building which building, have to do to they build on the same lot, purchased lot another near and they built a church on by that lot. 1882, the said December, W. Harris leaving died,
last will and and one and one testament, son, W. C. Harris, Pattie his daughter, children and Young, heirs-at-law. his said will he devised and
By his bequeathed property children, which he used the two To following language: Pattie “one-half of all real and my personal kind and of.” every description not hereinbefore disposed Walter C. Harris is still but Pattie died in living, October, without 1.S92, issue, testament, and leaving of her after numerous which, other dispositions making she willed in Item 19 follows: “It is will and de- erty, my as sire that all the rest and residue of my real, and mixed, which I die shall be may possessed, seized sold and collected executor named by my hereinafter such named terms as to time as he best.” She then deem may her claims one-half executor, of Pattie under this 19th item Young’s for the will, "plaintiff, purpose removing upon cloud this action. title, It will be to the observed the deed from A. Harris THE IN SUPREME COURT.
Chobch is an absolute which have continued forever. may fee, a condition But contains absolute estate which this makes it an estate in fee defeated, which or, as it is called' the old a base or books, fee, qualified limitation —a condition sometimes called a conditional defeated, the estate limited. condition had been broken
It is admitted that the enter A. Harris, might living, heirs that his dead, as he is of the estate, ’and, revest himself do so, no one else can do so. But it is contended that might breach, and that at the time both (the *3 Har that Walter C. dead, and Pattie Young being grantor) of said A. .Harris heir land Pattin. only being ris, Rules enter. Grray’s who could Young), And that since sec. (2). against Perpetuities, page 6, of this the commencement and before of the condition breach of convey a deed has received quit-claim action, is now the absolute C. ance from said Walter in fee simple; owner of said property af until did not take contends that although place breach the said and Pattie A. Harris the death both W. ter in he interest said could A. had property, the will Pattie, and did of W. will, will, gave will defendant, and did to the her interest which she could an from 0. to the conveys and that Walter plaintiff only half and that this defendant one undivided interest therein, is entitled to the half thereof. neither W. Harris
Until the breach of the said in this nor said had interest or estate Pattie Young therefore, was in the and, The absolute estate erty. in W.A. nor Pattie ever had could not be else. Neither anyone an an an nor even in this estate, interest, expectancy, an heir have in the estate of ancestor —as reason his the ancestor must and the law die, natural causes declares Youhg.
Church to whom his estate will But in this case heirs, descend.. there was to limit the estate until nothing plaintiff, and, had the same if it was a fee breach, grantee rights as star note simple. Oliitty 109, 110, Bl., pages pages Rules 155-6-7; Gray’s And Against Perpetuities, supra. having nothing, will, convey nothing by
and Pattie had will. her nothing convey by Suppose A is the next of kin and heir-at-law and if A B, should die, his children would be the next of kin and heirs-at-law of B.
A dies the lifetime of will B, testament, leaving in which he willed to 0—Item 19—as follows: “It is my will and desire that all the rest and residue of my property, real, personal mixed, which I die seized and pos- sessed, shall be sold and collected executor hereinafter by my named,” named Y as his executor. After the death of B dies that the com- estate, would be contended A, intestate, to A’s children from B’s A’s will ? C ing passed It most for the reason that A had no in- certainly not, terest B’s estate at the time of his and for the same death; reason the no or in- passed title, terest to Pattie because he had no in it and Pattie’s will to convey, passed nothing *4 the defendant. that it is denied
It seems the defendant but what hardly law the estate in the land in at the common controversy reverted to con the heir-at-law C. (Walter Harris) upon the he contends that this is changed dition broken. But 1844, from the Act of the will which makes speak chap. 2141, of of provisions death of the and testator, chapter The Code. Other clauses are relied upon by contention, seems sustain his but the paragraph following others, of if any nearly to be most in point controls “And as follows: bear and that is question, them broken, also to all of for conditions rights entry IN THE SUPREME COURT. Chuboh and, of rights entry; also, to such of the same estate, interest and rights and other respectively, estate as the testator to at the time of his death.” entitled This means evidently of rights conditions entry broken lifetime of the and where had the of testator, right entry he This seems living. us con- manifestly proper struction of this time rights as he has “at the statute —such of his death.'” And, besides, manifestly proper this being construction of the the statute in statute, puts harmony the plainest law principles of of governing as it can not be erty, that the intended supposed Legislature to authorize a testator to what did not have. A. Harris he
Our the death of W. is, that at opinion, then, no interest had no in in the property will; therein to Pattie passed and, Young by A. none to her under the W. Harris had no interest, passed nor inherit Avhather father will of W. could she Harris, did will to the defendant have, she had nothing in and he has no interest the same. the breach of the condi- is,
Our further opinion in land iu and the estate tion entry heir-at-law reverted to Walter 0. Harris, only controversy breach; at the time grantee, in and has the title W. 0. Harris that, as acquired said, it is the absolute owner thereof fee land, simple. below judgment Affirmed. not sit on the J., appeal. did hearing
MoNtgomjeey, I can not the result. J., concurring Douglas, until the breach that, with the the Court agree was in the there “the absolute estate plaintiff, and, The deed of A. Har- not be else.” fore, anyone *5 1902. Youxg. Church
ris to the plaintiff a determinable in fee, having cidents aof fee simple that of but except liable to alienation, defeated. entirely terms it By very could never be en into a fee larged simple absolute, re except, lease of the or grantor his heirs. It contained no inherent power enlargement. It true such an estate is sometimes called a fee or limited simple conditional, which always seemed to me a it misnomer; but can never be an absolute fee.
If it were, would remain in the nothing hence no grantor, take advantage defeasance. There possible must remain in the reverter, at least a possibility of which, not an inis itself a estate, with coupled right, contingent right This entry-. may be right abeyance, but it exists at all, or it must exist actually potentially, It seems to grantor. me reverter possibility also an interest a double title land, thereby by comes within the of section 2140 of provisions The Code. The word has been thus defined: “Interest means concern; also, share, advantage, portion, part, participation; any good, right in the nature use but less than title. Its chief seems some to designate attaching either can or need not be defined with precision.” L. Am. Enc. Eng. (2d Ed.), understanding,
Coke “Interest in legal ex vi termini says: in, hath of, titles that a man extendeth estates, to, or said have an interest out he is lands; truly them.” Co. 345a. Litt., In or contingent.
Interests bemay executory Young vested, held, R. 675; 23 L. Va., A., claim remainder was an contingent a statute using or will under might disposed of extreme to be one fact, the word seems terms. those everything nearly to include be used which may elasticity, the subject-matter. claimant connecting legally *6 14 IN THE SUPREME COURT.
Chukch Section of The Code testator provides that, “Any * **' of all may real and dispose estate, * * * he shall be entitled to at the time of death, and the to shall extend all ex- power hereby given contingent, other or or any personal estate, ecutory future whether the testator or or one not be of may may person in whom the same persons, become or vested, whether may be thereto entitled under instrument by which or created, same under thereof or any disposition and, also, of for condition will; broken, to entry all other etc. i-ights entry,” be
It would difficult for make the one to language and I can not that it includes, statute doubt broader, was intended include, all contingent, executory or future as well whether vested entry, as all rights interests, or of reverter is a in- contingent. possibility contingent which becomes vested condition broken. terest, Upon or his heir remitted his former entry the fee. and the becomes into reversion, merged ex- I no reason the statute should see of public policy why of en- clude a possibility reverter, contingent very but disposition; from the power testamentary try, it be included. England, reason should strong why made the home of the rule of primogeniture law, common as there was practically matter, simple of the heir a very entry fees Determinable is different. heir; here, but one but time, grantor may long very Must over the country. scattered number of descendants large for all or can enter broken, condition all enter hey difficult are ? These questions as tenant common hold which may of application, inconvenient solution disposition. testamentary avoided that the possibility conclusion forced am, therefore, I either the grantor devised have been of reverter TEEM, EEBEITAEY C.] Butlee Railboad. whether it can. daughter, Pattie; within but, terms the will of the latter, a different I question.
am not that a prepared die seized say person “may pos- of a of reverter. If sessed” it did not Pat- possibility pass by *7 tie’s will, it went to as Walter Pattie’s was heir, by I am thus the con- plaintiff. clusion the Court. EXTENSION AND
BUTLER SOUTH CAROLINA GEORGIA COMPANY. RAILROAD
(Filed February 25, 1902.) Expert Opinion Evidence —Examination EVIDENCE — Evidence — Witnesses —Gross-examination. expert An witness can be discredited on cross-examination asking reading opposite an from a text-book
him whether it is correct.
2. EVIDENCE —Res Gestae. against company injuries, personal an action a railroad for
In hurt, the in- statement to bow was made after jury, hearing been or in of the not shown to have part gestae, nor to have been the res incom- petent.
3. EVIDENCE. against company injuries, an action a railroad by plaintiff riding caboose, sustained evidence careful, prudent conductor and brakemen men were incompetent. * P. B. Butler his wife the South against ActtoN Carolina Extension Eailroad heard Company, Georgia Term, 1901, M. El. Justice by Judge jury, September Court of ButitebeORd Superior County. defendant offered as a witness the conductor