62 S.E. 519 | N.C. | 1908
Defendant appealed. The sole question is the construction of the following clause in the will of Louisa Yates: "I lend and bequeath to my granddaughter, Mary Louallie Poole, during her natural life, and then to her child or children and issue, if any, but if she should die (435) without child or children or issue, then this property to belong to James Grist Staton, Louisa Staton and Ella Staton during their natural lives and then to their child or children and issues thereof, the following real and personal property" (describing it).
Upon the facts agreed it appears that Mary Louallie Poole married the plaintiff, James Grist Staton; that there were born to said marriage three children, who died previous to their mother, and without issue, and the mother is since dead. The plaintiff insists that the children took a vested remainder, that upon their death such vested remainder passed to him, and he is entitled to the whole.
Such is not the language of the will. It provides that if Mary Louallie "should die without child or children or issues, then this property to belong to James Grist Staton, Louisa Staton and Ella Staton during their natural lives," and then over. And this was exactly what happened. The first life tenant died without leaving any child or children or issue. The devise to them was contingent upon their being alive at the death of the life tenant, and was never vested in them. At her death the property passed to James Grist Staton and his two sisters as life tenants, and then over. The intent of the will to this *325 effect is clear. If it had been doubtful, chapter 7, Laws 1827 (now Revisal, 1581), provides, as the rule of construction, that a devise to one for life, with remainder over upon his dying "without heirs" or "without issue" or "without children," shall be construed to mean dying without heirs or children or issue "living at the time of his death" (or born to him within ten lunar months thereafter), unless a contrary intent is "expressly and plainly declared in the face of the deed or will."
The ruling of the court below that James Grist Staton, upon the death of his wife, took a fee simple is
Reversed.
Cited: Patterson v. McCormick,
(436)
