58 N.C. 370 | N.C. | 1860
Henry Carter, by his last will, devised to his wife a tract of land for her life, with a remainder to James Carter. He likewise bequeathed to her for life a negro woman by the name of Phillis, and her increase, with a limitation over to his several children, excluding defendant James. He also bequeathed two slaves, a wagon, a horse and a cart to his said wife during her natural life, and then "to be James Carter's, provided he take care of his mother; if not, to be whose that does take care of her."
He gave to each of his children, besides the bequests mentioned, substantial legacies under the will, but the amount or value of none of them is stated in the pleadings.
Elizabeth Carter, the wife of the testator, died in the lifetime of the testator, and the plaintiffs contend that the two slaves, wagon, etc., were given to James upon a condition precedent, which being rendered impossible by the death of the tenant for life, the property never vested in him, but remains undisposed of and subject to be distributed as intestate property. This is the sole question in the case. The question presented for our determination (371) involves the construction of the first clause of the will of the testator Henry Carter, and it is, whether the legacy therein given to James Carter depended upon a condition precedent, and was lost because the condition became an impossible one before the death of the testator. The counsel for the plaintiff contends strenuously for the affirmative, while the counsel for the defendant James Carter insists that the condition was a subsequent one, or that the legacy was intended by the testator to be vested, subject to the charge that the legatee should take care of his mother.
In the consideration of this question, it cannot be denied that the condition is, in form and appearance, precedent to the vesting of the legacy; but we learn from the highest authority that when such conditions are at first, or afterwards become, impossible, the rule applied to bequests of personalty is different from that which governs devises of realty. Thus, in 2 Williams Executors, 786, it is said that, "With respect to conditions precedent which are impossible, a different rule is applicable to bequests of personal property from that which is prevalent respecting devises of realty. By the common law of England, if a condition precedent is impossible — as to drink up all the water in the sea — the devise will be void; but by the civil law, which, on this subject, has been adopted by the courts of equity, when a condition precedent to the vesting of a legacy is impossible, the bequest is single — that is, discharged of the condition — and the legatee will be entitled as if the legacy were unconditional." It is admitted that there are exceptions to this rule of the civil law, as appears from what Mr. Williams says further on in the same page: "If, indeed, the impossibility of the condition were unknown to the testator, as where a legacy is given on condition that the legatee marries the testator's daughter, who happens to be then dead; or where the impossibility arises from a subsequent act of God, as if she be living at the date of the will, but dies before the marriage can be solemnized, the impracticability of the performance will be a bar to the claim of the legatee, in cases, at least, such as those mentioned, where the performance of the condition appears to be the motive of the bequest."
1 Roper Legacies, 505, 506, lays down the law in substantially the same terms, with this difference, however, as to the excepted (372) cases of the civil law, that the legacy will be void only where the impossible condition is "the sole motive of the bequest." Applying these rules to the case now before us, the inquiry is presented: Was the taking care of his mother the sole motive of the legacy to James Carter? We are clearly of opinion it was not. The testator made provision in his will, more or less, for all his children, but whether the portions were equal we are not informed. Of the property given to his wife for life, *294 the testator directs that a part should be sold and divided among the other children, leaving his son James the remaining part upon the condition of his taking care of his mother. She was not to be taken care of out of the property, for that was already given to her for life, and nothing is stated, either in the will or the pleadings, to show that she needed anything more than the ordinary care and attention due from a son to his mother. The motive of the legacy to James was doubtless, in part at least, the desire of the testator to provide for his son as he had provided for his other children, and it was not intended that he should lose the legacy if his mother should need his care.
We have hitherto considered the condition as if it were a single act, to be done or omitted at once, like the case of a legacy to one provided he should marry the testator's daughter mentioned in the works to which we have referred; but, in truth, it is a continuing condition, which might require the performance of many acts during a long series of years. Had his widow survived the testator, his son James was to be charged with the care of her during her whole life, whether long or short. We cannot believe the testator intended the legacy to remain in a state of contingency during all that time, but he designed it to become vested at once, subject to be forfeited when his son should fail in the continued performance of the condition. That condition, therefore, though in form and appearance a precedent one, is in reality and legal effect (373) a subsequent condition, and as such could not, by becoming an impossible one, prevent the legacy from taking effect. So all the authorities agree, as will be seen by reference to those standard authors which we have already cited. See, also, Darley v. Langworthy, 7 Bro. Par. Cas., 177.
PER CURIAM. Decree accordingly.
Cited: Lefler v. Rowland,
Dist: McNeely v. McNeely,
