14 S.E. 640 | N.C. | 1892
The question presented arose in the construction of item 15 of the will of Dr. J. O. Watson, which was in the following words:
"Lastly, all the rest and residue of my estate, real and personal, not herein and hereby disposed of with effect, I do hereby devise and bequeath as follows: After paying all of my just debts, legacies, and funeral expenses, and the charges for settling my estate and executing this will, I give the whole unto my nephew, John W. B. Watson, to have and to hold to him and his use for and during the term of his life, and at his death the said estate, both real and personal, shall belong to *5 such child or children of the said John W. B. Watson as may be living at his death, or the issue of any child who may predecease him. And if the said John W. B. Watson should die without issue living at his death, then the said estate, both real and personal, shall belong in fee simple and be equally divided amongst George W. Watson, William H. Watson, Henry B. Watson, and Owen L. Dodd, and (7) their heirs forever."
His Honor being of opinion with the plaintiff, gave judgment accordingly, and the defendant trustee appealed.
The particular provision in the will of J. O. Watson, the construction of which is involved in this controversy, is by no means a stranger to this Court. In Watson v. Watson,
In the latter case it was suggested, though not decided, that (8) the limitation to these persons was a contingent remainder. In this view we entirely concur. An executory devise is strictly such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules in limitations in conveyances at common law; but it is never construed to be such if it is possible that it should take effect as a remainder. Fearne Con. Rem., 368, 393. The limitation in question does not take effect after the limitation to the expectant issue, but upon the regular determination *6 of the particular life estate, and therefore must be a remainder. It is true that the limitation to the issue is also a remainder in fee, and it is a rule of law that no remainder can be limited after a fee; but, as we have seen, the other limitation is not expectant upon the determination of the estate limited to the issue, but upon the determination of the estate of the life tenant without issue.
In Goodright v. Dunham, 1 Doug., 265, the will was in these words: "I give my messuage, etc., to my son, J. S., for life, and after his death unto all and every his children equally, and to their heirs; and in case he dies without issue, I give the said premises unto my two daughters and their heirs, equally to be divided between them." It was determined that "both devises were contingent remainders in fee." See, also, Loddington v.Kyme, 1 Ld. Raymond, 203; Bannister v. Carter, 3 Bro. Parl. Ca., 64.Goodright v. Dunham, supra, is exactly in point. As in our case, the limitation is of two concurrent fees by way of remainder as substitutes or alternatives, one for the other, the latter to take effect in case the prior one should fail to vest in interest, and it is called a limitation by way of remainder on a contingency with a double aspect.
In deference to the discussion of counsel, and in view of the apparently conflicting judicial utterances upon the subject, we have deemed it best to determine the precise character of the limitation; but (9) we really do not see how it is essential to a proper disposition of this case. Taking the limitation to be either a contingent remainder or an executory devise, we are of opinion that the interest of George W. Watson and others was at least "a possibility coupled with an interest" (Watson v. Dodd, supra), and its assignment for a valuable consideration and free from fraud or imposition, while void in law, will be upheld in equity. In the above case, Pearson, C. J., seems to consider that it is an executory contract, which will be specifically enforced upon the happening of the contingency upon which the remainder is to vest. It is possible that he had in mind the assignment of a mere possibility, such as the expectancy of an heir at law, as in McDonald v. McDonald,
The plaintiff, the life tenant, has by the assignment acquired an equitable right to the interest of the said remaindermen. He is a single gentleman, about 80 years of age, and the defendant is willing to take *7 the risk of his marrying and leaving issue, provided the assignment of the remaindermen is effectual to bind them and their heirs. We have seen that such is its effect, and the judgment must be
Affirmed.
Cited: Foster v. Hackett,
(10)
