Buchanan v. Buchanan

• Decision Date: 19 March 1888
• Citation: 99 N.C. 308,5 S.E. 430
• Parties: Buchanan v. Buchanan et al.
• Court: North Carolina Supreme Court

5 S.E. 430

(99 N.C. 308)

Buchanan

v.Buchanan et al.

Supreme Court of North Carolina.

March 19, 1888.

Wells—Contingent Estate—Death of Person without Heirs—Code N. C. § 1327.

Under Code N. C. § 1327, providing that every contingent limitation, upon the dying of any person without heir or heirs of the body, shall take effect upon the dying of such person without such heir living at his death, a contingency in a clause in a will, " should R. die without a bodily heir, it is my will * * * that my son A. should have it all, " has reference to R.'s death at any time without such heir, and upon R.'s death after the testator without such heir, the executory limitation took effect in A.

Appeal from superior court, Anson county; Gilmer, Judge.

Action by Mary E. Buchanan against Andrew H. Buchanan and others for the recovery of land. Judgment for plaintiff, and defendants appeal. Code N. C. § 1327, provides that every contingent limitation in a will, made to depend upon the dying of any person without heir or heirs of the body, shall be held and interpreted a limitation to take effect when such person shall die, nothaving such heir living at the time of his death, unless the intention of such limitation be otherwise and expressly declared in the will creating it.

Batchelor & Devereux and E. C. Smith, for defendants and appellants. J. F. Lockhart, for plaintiff and appellee.

Smith, C. J. This is an action to recover land, and involves the construe tion of the seventh clause of the will of Henry Buchanan, under whom both parties to the action claim, and which is as follows;. "I, Henry Buchanan, of the county of Anson and state of North Carolina, being of sound mind and memory, but considering the uncertainty of life and my earthly existence, do make and declare this my last will and testament, in manner and form following; that is to say: First, that my executor hereinafter named shall provide for my body a decent burial, suitable to the wishes of my children and friends, and pay the expenses of the same, together with my just debts that may be owing at my death, out of the moneys that may be on hand, or that may first come into his hands, as a part or parcel of estate; and, should no moneys be on hand at my death, it is my will and desire that my executor sell crops, or any part of my perishable property, to raise money for the purpose of paying debts according to this clause. First Item. I give and devise to my son Francis five negroes, viz., Boston, Rose, Tamer, Lem, Ann. Second Item. I give and devise to my son Andrew, in cash, fifty dollars. Third Item. I give and devise to my son Horatio one hundred dollars in cash. Fourth Item. I give and devise to Jane Riley two negroes, Jinny and Lucy, one cow and calf, one bed. Fifth Item. I give and devise to Alexander Riley one tract of land on which I now live, known as the ' Dickson Tract of Land, ' for him and his mother and the rest of the children to live on until the youngest become of age; also a negro boy named Alfred, one named Charles, one named Ned, one named Franky, and a mule named Jersey; one cow and calf; and one bed; and one girl, Beck. Sixth Item. I give and devise to Mary Ellen Riley one negro girl, Easter; one negro girl, Margaret. Seventh Item. I give and bequeath to my son Richmond all the remaining part of my property, or all of my property not otherwise disposed of; and, should Richmond die without a bodily heir, it is my will and desire that my son Andrew should have it all. It is my will and desire that, should it become necessary to sell any part of my estate to meet the payment of moneys herein above by me given away, then and in that case my executor shall sell, first, perishable property, and any part of my personal property, to raise the same on a credit of twelve months; and should any residue remain after the payment and delivery of all the general and specific legacies herein set out and named, to be given or returned to my son Richmond. It is also my will and desire that my executor be paid for his trouble such compensation or commissions as the county court of Anson may deem just and right. And, lastly, I do hereby constitute and appoint my trusty friend, " etc. The will with attesting witnesses bears date in August, 1843, and was admitted to probate in the county court of Anson at its January session in 1845. The devisee the testator's son Richmond made his will in July, 1869, which was proved in the proper court in June, 1876, and therein he gives to the plaintiff "all his [my] estate, both real and personal, " "absolutely and in fee-simple." The defendants are the children and heirs at law of the devisee Andrew, named in the same clause, who died intestate in 1847, some 22 years previous to the death of his brother Richmond, in 1869. Upon the trial, and after hearing the evidence, the presiding judge being of opinion that the title depended upon the interpretation of the will of said Buchanan, and the effect of the words of limitation, reserved the point, and submitted to the jury an inquiry into the amount of damages, and, they being found, ruled in favor of the plaintiff as to the title, and gave judgment accordingly, from which, excepting thereto, the defendant appealed.

The ruling brought up for review proceeds upon a construction of the clause of the will in controversy which requires the death of the devisee Richmond, to take place in the life-time of the testator, as the contingency on which the limitation over to Andrew was to take effect, if the testator was the survivor. The devise is of an estate in fee to Richmond, terminable at his decease without issue, and, in such event, passing over and vesting in Andrew. No time is fixed for the executory devise over to take effect, except that it must be at the death of his brother, whenever this shall occur, under the specified condition of his being "without a bodily heir, " or childless; and to this the act of 1827 adds, "living at the time of his death." Code, § 1327. Without the aid of the statute, the concurrent rulings of the courts are that such a limitation being upon an indefinite failure of issue, that is, whenever such issue ceases to exist, is void for remoteness, to prevent which the enactment, alike applicable to wills and deeds, was made, when no contrary intent-is manifest. Thereby the limitation over is made effectual, or fails at the death of the first taker, and the result is then determined. "The series of cases in the English law, " in the language of Chancellor Kent, "have been uniform from the time of the Year Books down to the present day, in the recognition of the rule of law that a devise in fee, with a remainder over if the devisee dies without issue or heirs of the body, is a fee cut down to an estate-tail, and the limitation over is void by way of executory devise, as being too remote, and founded on an indefinite failure of issue." 4 Kent, Comm. 276, citing numerous cases. See, also, 3 Greenl. Cruise, 461; 2 Washb. Real Prop. 355, —to the same effect. The rulings in this state have been explicit, and to the same effect, as will be seen by referring to the following cases: Sutton v. Wood, Cam. & N. 202, 312; Bryant v. De Berry, 2 Hayw. (N. C.) 546; Jones v. Spaight, 1 Car. Law Repos. 544, 157; Sanders v. Hyatt, 1 Hawks, 247; Beasley v. Whitehurst, 2 Hawks, 437; Ross v. Toms, 4 Dev. 376; Brown v. Brown, 3 Ired. 134; Hollowell v. Kornegay, 7 Ired. 261; Gib-son v. Gibson, 4 Jones, (N. C.) 425. In Brown v. Brown, supra, it is declared that a devise before the act of 1827 in the words, "' if my son should die without lawful issue, ' unexplained, imported in a legal sense the failure of issue at any indefinite time, whenever it might happen, and a remainder limited upon such contingency was void." The remoteness of the limitation, not allowed by the common law, is obviated by the annexing of the statutory words, which confine the contingency to the state of things existing at the death of the previous owner. Now, it is apparent that if the testator intended, in the use of such general terms, to provide for the happening of the contingency, on which the limitation depends, during his own life, there would be no antecedent estate to support in remainder, or to admit of a transfer of a preceding estate by way of executory devise, since, in consequence of the lapse, the devise would be of an immediate and present estate; and as the effect of the superadded legislative words is to fix the vesting at the death of the preceding tenant, so as to obviate the objection of remoteness, so it would seem they must also determine the time when the limitation over, in cases like the present, must take effect. There are, however, numerous cases in which it has been held that when no specific period is pointed out for the limitation over to vest, other than...