100 S.E. 702 | N.C. | 1919
It appears that the plaintiff, Carrie W. Smith (wife of Herbert Smith), and Janie H. Strange, who are the children of the late Mrs. Bettie Andrews Atkinson, have contracted to sell and convey (371) to the defendant, Roger Moore, a certain lot of land on Market Street, in the city of Wilmington, and to convey to him a good and indefeasible title thereto in fee by deed sufficient for the purpose, and the said Moore promised to pay therefor the sum of five hundred dollars. Plaintiffs tendered a deed for the lot to Mr. Moore, and he refused to accept it, upon the ground that the plaintiffs could not convey to him thereby a good title in fee, because they did not acquire such a title by the will of their mother, the material portion of which reads, as follows: "I give and bequeath my estate, to be equally divided between my two daughters, Carrie W. Smith and Janie H. Strange, but if Janie should die without making a will or without a child or children, then her portion of my estate shall go to Carrie, or the surviving sister, or to her children if Carrie is dead. She, Janie, is privileged to make a will and leave the estate to whom she will. I wish, at the death of Carrie W. Smith, her portion of my estate to go to her children. If my dear husband *397 should be living when I die I wish him to have my home (corner Fifth and Dock streets, Wilmington, N.C.), as long as he lives, and at his death to be divided between by two daughters, Carrie W. Smith and Janie H. Strange. My daughter, Janie H. Strange, I give my interest in the Front Street house we bought together some time ago. That is to be taken out before the estate is divided. My stock and real estate I wish divided between my two daughters." The will was duly admitted to probate after the death of Mrs. Atkinson (formerly Mrs. Strange).
The judge was of the opinion, and so held, that the plaintiffs could convey a good title by their deed, and rendered judgment accordingly, and the defendant, Roger Moore, appealed. We always regret to disagree with the lower court, and especially when our inclination is to concur with it and unfetter titles, so that land may be kept in the channels of commerce. But we must, of course, follow the law and be governed by its principles. In construing this will, we must search for the intention of the testator and execute her wish as we may discover it to be, if it is not contrary to law, but is a valid one, which is the case here. So the only question is the true meaning and legal effect of the will.
The devise was made contingent by the first clause. It is true that the real property is given to the daughters, to be equally divided between them, but it is further provided that if Janie should die without leaving a will, and without a child, or children, then her portion of the estate shall go to Mrs. Smith, her surviving sister, or to her children, if she is dead. Miss Janie took, under (372) this clause, a defeasible fee, the contingency being that she dies without child or children, and without having left a will, but there is a further contingency, that, in that event, it shall go to Mrs. Smith, if living at Miss Janie's death, and if not, then to her children. Of course, the fact of her leaving a will would not be material, because, if she did so, the party claiming under her would be bound or estopped by this deed in which she joins. The further contingency just mentioned arises if she does not leave a will, when, at her death, the estate will go to her sister, or if she be dead at the time, then to her children. If Miss Janie does not marry, or dies without children, if she does marry, and leaves no will, it cannot be determined at this time who will be the children of Carrie, if the latter has died before her sister. All of her present children may be dead at that *398 time, and other children, not now living, may be in esse, and they have not, and of course could not, have signed the contract. Besides, one of her living children is a minor and cannot convey an indefeasible title, and is not a party to the contract, if he could be, so as to bind himself irrevocably. His guardian does not profess, in his answer, to surrender any of his rights, but submits the matter to the court to determine what they are and to adjudge accordingly.
But there is another question. The plaintiffs' counsel seems to concede that if Mrs. Carry Smith acquired only a life estate in her mother's land by the will, that the plaintiffs cannot comply with their contract and pass a good title by their deed. It is argued with much ability, and plausibility, that by a survey of the entire will it appears that Mrs. Atkinson's purpose was to give to her two daughters a fee simple absolute in her real estate, to be held and enjoyed by them as tenants in common, share and share alike, and this deduction is drawn from the first words, and the last words, in the will, where it is said she devises it to them without qualification, and that the clause, "I wish, at the death of Carrie W. Smith, her portion of my estate to go to her children," should not be allowed the effect to change the manifest intention, which is to be drawn from the other language just referred to. But the trouble with this argument is that she qualified the gift, as expressed in the first part of the will by the contingent clause which follows it, and by which she limits Miss Janie's share over to her sister, or to her sister's children if she be dead. The clause just quoted above intervenes the first and last clauses of limitation, and, as we are bound to hold, clearly and unequivocally gives Mrs. Smith a life estate, with remainder to her children at her death. But neither the last nor the first clause is necessarily inconsistent with the creation of this life estate. The property is still divided "between the daughters," though (373) one may take a life estate with remainder to her children, and the other a defeasible fee. At least, they are not in such irreconcilable conflict as to bring the case within the rule of construction relied on by plaintiffs' counsel, that the last clause takes precedence over those before it in the instrument.
Plaintiff's counsel cites Taylor v. Brown,
By that rule no person was permitted to raise in another (375) an estate of inheritance, and at the same time make the heirs of that person purchasers." 6 Cruise 325, 326, 328; Fearne on Con. Rem. 196; Hargrave's Tracts 551; 4 Kent 208, 214;Denn v. Puckey, 5 T. R. 299, 303; Richardson v. Wheatland, 7 Met. 172. That view of the rule was taken in Nichols v. Gladden, supra, by this Court, and it was added: "The material inquiry is, What is taken under the second devise?" But what is said in Jones v. Whichard,supra, a leading authority on this subject, is very appropriate to the special facts of our case, and to the form of the devise we are construing. After saying that, in order for the rule to apply where the *401
words are "heirs" or "heirs of the body" (which are stronger words than those here to show descent), they must be used in their technical sense, and carry the estate to them, as an entire class, to take in succession from one generation to another, and must have the effect to pass the same estate to the same person, whether they take by descent or by purchase, the Court proceeds to state that, "Whenever it appears from the context, or from a perusal of the entire instrument, that the words were not intended in their ordinary acceptance of words of inheritance, but simply as adescriptio personarum designating certain individuals of the class, or that the estate is thereby conveyed to `any other person in any other manner, or in any quality than the canons of descent provide,' the rule in question does not apply, and the interest of the first taker will be, as it is expressly described, an estate for life," citing numerous cases, some of them already cited in this opinion, supra. And referring to Whitfield v.Garris,
The law presumes that the possibility of issue is not extinct, and that there may be other children of the marriage to share in this property who, of course, have not signed the contract. Whether we construe the remainder to be vested, or as one, (376) while vested, which will open and let in after-born children, who fulfill the description at the life tenant's death, or to be contingent, as being confined to those children living at the death of the first taker (Irvin v. Clark,
The court was in error when it construed this will otherwise than we have herein indicated its meaning to be, and for this reason the judgment must be reversed.
Whether the property can be sold under the statute relating to contingent estates and interests we have not been asked to declare.
Reversed.
Cited: Walker v. Butner,