Elmore v. Austin

• Decision Date: 03 May 1950
• Docket Number: No. 453,453
• Citation: 232 N.C. 13,59 S.E.2d 205
• Court: North Carolina Supreme Court
• Parties: ELMORE et al. v. AUSTIN et al.

Page 205

59 S.E.2d 205

232 N.C. 13

ELMORE et al. v. AUSTIN et al.

No. 453

Supreme Court of North Carolina.

May 3, 1950

William Joslin, Raleigh, for the plaintiffs.

Martin R. Peterson for Martin R. Peterson, guardian ad litem.

Brassfield & Maupin, Raleigh, for the defendants Louise P. Austin, Isabell A. Armstrong, and Edward U. Austin.

ERVIN, Justice.

The appeal of the plaintiffs challenges the validity of the declarations of the judgment in respect to the devises to the plaintiff, Lucy P. Elmore, under the third and seventh items of the will.

In construing a will, the court seeks to ascertain and carry into effect the expressed intention of the testator, i e., the intention which the will itself, either explicitly or implicitly, declares. Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621; Sharpe v. Isley, 219 N.C. 753, 14 S.E.2d 814; Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; Anderson v. Bridgers, 209 N.C. 456, 184 S.E. 78; Snow v. Boylston, 185 N.C. 321, 117 S.E. 14. Where the language employed by the testator is plain and its import is obvious, the judicial chore is light work; for, in such event, the words of the testator must be taken to mean exactly what they say. Whitfield v. Garris, 131 N.C. 148, 42 S.E. 568. But where the language in the will does not clearly express the testator's purpose, or when his intention is obscure because of the use of inconsistent clauses or words, the court finds itself confronted by a perplexing task. In such case, the court calls to its aid more or less arbitrary canons or rules of testamentary construction designed by the law to resolve any doubts in the language of the testator in favor of interpretations which the law deems desirable. 57 Am.Jur., Wills, sections 1120, 1124; Am.Law.Inst. Restatement, Property, Vol. 3, section 243.

The third item of the will undertakes to set forth the intent of the testator in respect to the devolution of Lot No. 3 of the Bloomsbury Property in two-fold fashion. Unfortunately the phraseology used in the first statement is employed in reverse in the second. As a result of this doubleness of expression, the language of the item is more or less inconsistent, and the purpose of the testator in regard to the lot is somewhat obscure. Similar observations apply to the seventh item, which devised to the feme plaintiff a share in remainder in the residuary realty of the testator.

These things being true, the court must invoke the canons or rules of testamentary construction germane to its present problems. These are as follows:

1. 'When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.' G.S. § 31-38; Kirkman v. Smith, 174 N.C. 603, 94 S.E. 423.'

2. The law favors the construction of a will which gives to the devisee a vested interest at the earliest possible moment that the testator's language will permit. Priddy & Co., v. Sanderford, 221 N.C. 422, 20 S.E.2d 341; McDonald v. Howe, 178 N.C. 257, 100 S.E. 427. As an incident of this rule, courts prefer to construe doubtful conditions as subsequent rather than precedent because such construction gives the devisee a vested estate subject to be divested instead of deferring the vesting. Mountain Park Institute v. Lovill, 198 N.C. 642, 153 S.E. 114; 69 C.J., Wills, section 1784.

3. 'The law favors not only the early vesting, but also the early indefeasible or absolute vesting, of estates.' 69 C.J., Wills, section 1682. As a corollary of this rule, such a construction is to be put upon conditional expressions, which render a testamentary gift defeasible, as to confine their operation to as early a period as the words of the will allow, so that it may become an absolute interest as soon as the language of the testator will permit. Westfeldt v. Reynolds, 191 N.C. 802, 133 S.E. 168; Whitfield v. Douglass, 175 N.C. 46, 94 S.E. 667; Biddle v. Hoyt, 54 N.C. 159; Hilliard v. Kearney, 45 N.C. 221.

4. 'Every contingent limitation in any * * * will, made to depend upon the dying of any person * * * without issue * * * shall be held and interpreted a limitation to take effect when such person dies not having such * * * issue * * * living at the time of his death * * * unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the * * * will creating it.' G.S. § 41-4; Willis v. Mutual Loan & Trust Co., 183 N.C. 267, 111 S.E. 163; Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Dawson v. Ennett, 151 N.C. 543, 66 S.E. 566; Wilkinson v. Boyd, 136 N.C. 46, 48 S.E. 516; Kornegay v. Morris, 122 N.C. 199, 29 S.E. 875; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435, 6 Am.St.Rep. 574; Buchanan v. Buchanan, 99 N.C. 308, 5 S.E. 430.

The judgment under review is necessarily based on the theory that the third item of the will gives the feme plaintiff two distinct legal estates in Lot No. 3 of the Bloomsbury Property; that the first is a life estate, which inevitably ends at her death; and that the second is an estate in fee, which remains contingent throughout her life, but will vest in her absolutely at her death in case specified contingencies are satisfied. We by-pass without discussion or decision the intriguing, but somewhat disconcerting, assumption implicit in the judgment that the law will permit an erstwhile devisee, who has departed this life, to become vested of an earthly estate in fee simple absolute at a time when theology testifies that she is only fitted for a home in heaven.

Be that as it may, the trial court has fallen into error in other respects. The third item of the will devises a single estate to the feme plaintiff. Since such estate may last forever, it is a fee simple; and since it may end on the happening of a specified event, it is a fee simple defeasible rather than a fee simple absolute. Am.Law.Inst. Restatement, Property, Vol. 1, Chapters 3 and 4. See, also, in this connection: 19 Am.Jur., Estates, sections 13, 28; 31 C.J.S., Estates, §§ 8, 10; Paul v. Willoughby, 204 N.C. 595, 169 S.E. 226; Henderson v. Western Carolina Power Co., 200 N.C. 443, 157 S.E. 425, 80 A.L.R. 497; West v. Murphy, 197 N.C. 488, 149 S.E. 731; James v. Griffin, 192 N.C. 285, 134 S.E. 849; Alexander v. Fleming, 190 N.C. 815, 130 S.E. 867; Walger v. Butner, 187 N.C. 535, 122 S.E. 301; Love v. Love, 179 N.C. 115, 101 S.E. 562; Smith v. Parks, 176 N.C. 406, 97 S.E. 209; Williams v. Blizzard, 176 N.C. 146, 96 S.E. 957; Albright v. Albright, 172 N.C. 351, 90 S.E. 303; Bizzell v. Mutual Building & Loan Association, 172 N.C. 158, 90 S.E. 142; Maynard v. Sears, 157 N.C. 1, 72 S.E. 609; Elkins v. Seigler, 154 N.C. 374, 70 S.E. 636; Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904; Keith v. Scales, 124 N.C. 497, 32 S.E. 809; Wright v. Brown, 116 N.C. 26, 22 S.E. 313; Hall v. Turner, 110 N.C. 292, 14 S.E. 791.

An estate in fee simple defeasible may be either (1) an estate in fee simple determinable, or (2) an estate in fee simple subject to a condition subsequent, or (3) an estate in fee simple subject to an executory limitation. Am.Law Inst. Restatement, Property, Vol. 1, sections 44, 45, 46.

When the sixth item of the will is read in the light of the relevant canons and rules of testamentary construction, it becomes manifest that the testator thereby devised Lot No. 3 of the Bloomsbury Property to the feme plaintiff in fee simple determinable. This is true because 'an estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple; and provides that the estate shall automatically expire upon the occurrence of a stated event.' Am. Law Inst. Restatement, Property, Vol. 1, section 44.

Notwithstanding the qualification annexed to it, a fee simple determinable constitutes the entire estate throughout its continuance. Landers v. Landers, 151 Ky. 206, 151 S.W. 386, Ann.Cas.1915A, 223; Proprietors of Church in Brattle Square v. Grant, 3 Gray 142, 69 Mass. 142, 62 Am.Dec. 725; Lyford v. Laconia, 75 N.H. 220, 72 A. 1085, 22 L.R.A., N.S., 1062, 139 Am.St.Rep. 680. It retains its defeasible quality, however, until the happening of the stated event by which it is to be determined, or until it is converted into a fee simple absolute. Harrell v. Hagan, 147 N.C. 111, 60 S.E. 909, 125 Am.St.Rep. 539. A fee simple determinable is converted into a fee simple absolute when the stated event on which it is limited becomes impossible of occurrence. Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404; Simes: Law of Future Interests, section 187; 31 C.J.S., Estates, § 10; 69 C.J. Wills, § 1559.

When the owner of land in fee simple absolute devises it in fee simple determinable, a possibility of reverter, which is a reversionary interest subject to a condition precedent, springs up. It arises without being created by any specific words in the will, and exists in the eligible heirs of the devisor while the fee simple determinable is outstanding in the devisee or his successors in interest, that is to say, until that estate ends by the happening of the stated event on which it is limited, or until that estate is converted into a fee simple absolute. Am.Law Inst. Restatement, Property, Vol. 1, sections 44, 58, and Vol. 2, section 154; Simes: Law of Future Interests, sections 177, 187; 19 Am.Jur., Estates, section 31. The term, 'eligible heirs' does not refer to the heirs of the devisor in general. It embraces only those persons who would answer the description of heirs of the devisor at a particular time if the stated event terminating the fee simple determinable were then to occur. It necessarily follows that where an estate in fee simple determinable created by will is ended by the happening of the stated event limiting it, the property reverts in fee simple absolute to...