64 S.E. 193 | N.C. | 1909
This action was brought to recover damages for waste, alleged to have been committed by the defendant on the land described in the complaint, and for an injunction against the further commission of waste. The court virtually intimated that the plaintiff could not recover, as under the will of William A. Sink his widow acquired a fee-simple estate and not merely an estate for life. The plaintiff excepted to the ruling, submitted to a nonsuit and appealed.
The decision of the case must turn upon the construction of the *366 eleventh item of the will, which is as follows: "I give and bequeath to my beloved wife, Mahaley, the remainder of my land, after selling off, as directed in the tenth item, whatever there may be remaining, to have and to hold to her own proper use and behoof, to embrace my mansion house and other outhouses and improvements of the land I now live on, during the term of her widowhood, and after her marriage to be equally divided between my brother and sisters or their legal representatives, share and share alike." W. A. Sink died without having had any children, leaving as his heirs at law a brother and sisters. In his will he directed that certain land and other property be sold to pay his debts and the legacies given in the will, and that if, after paying the same, any surplus remained, it should go to his widow, Mahaley Sink.
We are of opinion that the estate in the land devised to the widow could not endure beyond her life. Blackstone says that if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice, in these and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone. Yet, while they subsist they are reckoned estates for life, because, the time for which they will endure being uncertain, they may by possibility last for life if the contingencies upon which they are to determine do not sooner happen. 2 Blk., 121. In Fuller v. Wilber,
This Court decided In re Brooks' will,
We have carefully examined the whole will, and can find nothing therein to change the settled meaning of the words used by the testator in devising certain land to his widow. There is no general residuary clause in the will. The direction to pay the surplus of any money arising from the sale of some of his real and personal property did not constitute her his general residuary devisee, so as to vest the remainder after her life estate in her. There are some expressions indicating a contrary purpose — that is, an intention that it should go to his heirs.
The cases cited by the defendants' counsel (Foust v. Ireland,
There was error in the ruling of the court. The nonsuit will therefore be set aside.
Error.