Bowen v. Hackney

• Decision Date: 11 October 1904
• Citation: 48 S.E. 633,136 N.C. 187
• Parties: BOWEN v. HACKNEY et al.
• Court: North Carolina Supreme Court

48 S.E. 633

136 N.C. 187

BOWEN v. HACKNEY et al.

Supreme Court of North Carolina

October 11, 1904

Appeal from Superior Court, Wilson County; Councill, Judge.

Suit by W. D. Bowen against George Hackney and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Where testator devised land and certain personalty to his wife for life, and then made to each of his children certain devises and bequests in the first six items, and in the seventh item declared "that at the expiration of the life estate of my wife, that which is given to her for life shall be equally divided between all my children, share and share alike, the representatives of such as may have died to stand in the place of their ancestors," testator's children took a contingent remainder in the land, the contingency being that they should survive their mother, and, failing in this as to any one or more of them, the remainder vested in his or their children on the death of testator's widow.

This is a special proceeding for the partition of land, which was brought before the clerk, and by him transferred, under the statute, to the superior court, for the trial of issues joined between the parties, and heard by Councill, J., at May term, 1904; a jury trial having been waived. The court held that the plaintiff is not a tenant in common with the defendants, and a judgment was entered accordingly, to which the plaintiff excepted and appealed.

Small & McLean and S. C. Bragaw, for appellant.

F. A Woodard, Connor & Connor, and J. F. Bruton, for appellees.

WALKER J.

It appears from the case that Willis N. Hackney, who died in 1887, left a will, in which he devised a lot containing about one-half acre in the town of Wilson, and certain personal property, to his wife for life. He then devised and bequeathed to his children land and personal property. These devises and bequests were made in the first six items of the will, and the seventh item is as follows: "I now declare that, with the advancements already made and specially given in this will, in my judgment, equality is made to all my children, so that at the expiration of the life estate of my wife, that which is given to her for life shall be equally divided between all my children, share and share alike, the representatives of such as may have died to stand in the place of their ancestors." Plaintiff married Orpah, a daughter of the testator, who died in July, 1899, without issue, leaving a will in which she devised and bequeathed all her property to the plaintiff. The widow of Willis N. Hackney died in December, 1901. Plaintiff claims an interest in the one-half acre lot as tenant in common with the defendants by virtue of the seventh item of the will of Willis N. Hackney and the will of his wife. The judge ruled that he was not so entitled, and this ruling we are called upon to review.

The decision of the case turns upon the proper construction of the seventh item of the will. If the remainder after the life estate of Mrs. Hackney was vested absolutely by the seventh clause in Orpah (plaintiff's wife) at the death of the testator, and the direction as to the division of the property at her death, or, to use the words of the will "at the expiration of her life estate," referred not to the time of the vesting of the estate in interest, or of the vesting of a right to a future estate of freehold, but merely to the time of enjoyment or the vesting of the estate in possession, it will follow that the plaintiff's contention is right, and that he acquired that vested interest of his wife under her will; but if the provision of the seventh item does refer to the time of the vesting of the estate in interest, or, in other words, to the accrual of the right of property as distinguished from the right of enjoyment, his wife acquired an estate contingent upon her surviving the life tenant; and, as she died before the latter, her interest never vested, plaintiff took nothing under her will, and his suit must fail. We are of the opinion that the latter view is the correct one.

In the construction of a will, the main purpose is to ascertain and effectuate the intention of the testator, so that his property may be received and enjoyed by those who were the objects of his bounty, and his intent will always be carried out when to do so will not contravene some well-settled rule of law-- for example, a rule by which a certain, fixed, and definite meaning is given to the language employed by him. The case before us does not present any serious difficulty in the way of ascertaining what the testator meant, when we read the will as a whole, and interpret it accordingly, or even when we isolate the seventh item and construe it by itself. The testator had in former parts of his will devised the lot in question and certain personal property to his wife for life, and devised and bequeathed other property to his children in a manner which, in his opinion, gave each of them an equal share of his estate. Having thus produced equality in this distribution among them, as he declared, he then directs, in the seventh item of his will, that, at the expiration of the life estate of his wife, that which was given to her for life should be equally divided among all his children, share and share alike; the representatives of such as may have died to stand in the place of their ancestors. There are no words of devise in this item, except by inference or implication from the direction that the property, at the death of his wife, should be equally divided; and, as to the period of division, and consequently of devise, the will uses terms of strict condition, namely "at the expiration of the life estate." The general rule undoubtedly is that, if there is, in terms, a devise, and the time of enjoyment, merely, is postponed, the interest is a vested one, but if the time be annexed to the substance of the gift or devise, as a condition precedent, it is contingent and transmissible. 3 Wooddeson, 512. This rule was applied in the case of Anderson v. Felton, 36 N.C. 55, to a gift which was to take effect at the time the testator's daughter "arrived to the age of fifteen years," but there was no preceding life estate, as there is in this case; and in Rives v. Frizzle, 43 N.C. 237, this was said to take the case out of the rule as stated in Anderson v. Felton. But there are words in the seventh item of the will which distinguish this case from either of those last mentioned, and bring our case within either one or the other of the principles stated in Starnes v. Hill, 112 N. C., at page 10, 16 S.E. 1011, 22 L. R. A. 598, and Whitesides v. Cooper, 115 N. C., at page 574, 20 S.E. 295, in the passage quoted from Gray on Perpetuities, 108, which is as follows: "The true test in limitations of this character is that, if the conditional element is incorporated into the description of the gift to the remainderman [as it is in the case under consideration], then the remainder is contingent, but if, after the words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, on a devise to A. for life, remainder to his children, but, if any child die in the lifetime of A., his share to go to those who survive, the share of each child is said to be vested, subject to be divested by its death. But on a devise [as in the present case] to A. for life, remainder to such of his children as survive him, the remainder is contingent." Clark v. Cox, 115 N.C. 93, 20 S.E. 176; 2 Under-hill on Wills, § 867, and also pages 1309 and 1310. It can make no difference in this case whether the remainder to each child was contingent, or vested but...