Harrell v. Hagan

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J.
• Citation: Harrell v. Hagan, 147 N.C. 111, 60 S.E. 909 (N.C. 1908)
• Decision Date: 18 March 1908
• Parties: HARRELL v. HAGAN et al.

60 S.E. 909

147 N.C. 111

HARRELL v. HAGAN et al.

Supreme Court of North Carolina

March 18, 1908

Appeal from Superior Court, Edgecombe County; Neal, Judge.

Action by Amos Harrell against Frank Hagan and others. From a judgment for plaintiff, defendants appeal. Reversed.

Where testator devised land to his wife for life, with remainder to his daughters, and provided that "if either or all of" the daughters should "die without leaving a lawful heir" the property should be equally divided between his sons, the daughters took a remainder in fee determinable as to each holder's share on her dying without a lawful heir, and the event by which the interest of each was determined referred not to the death of testator but to that of the several daughters, respectively without leaving a lawful heir, so that the estate did not become absolute in the other daughters on the death of one of them without leaving heir, but the determinable quality of each interest continued to affect such interest until the event by which it was determined, or the estate became absolute.

From the facts agreed it appeared: That Elisha Harrell died domiciled and resident in Edgecombe county, seised and possessed of the land in controversy, and leaving him surviving his widow, Anne Eliza Harrell, and several sons and daughters. That item 2 of the will of Elisha Harrell, duly executed and admitted to probate in said county, contained the following devise: "I lend unto my wife, Anne Eliza Harrell, 290 acres of land during her natural life or widowhood; at the death or marriage of my said wife, I give and bequeath unto my four youngest children, Armitha Harrell Opperlina Harrell, Rebecca Harrell and Louisa Harrell, the above-named 290 acres of land, known as follows: *** And if either or all of the above girls die without leaving a lawful heir, my will and desire is that the said lands be equally divided between my two sons, John Harrell and Jesse Harrell." (2) That during the life of the widow, Anne Eliza Harrell, the 290 acres of land was actually and equally parceled out among the four daughters mentioned in item 2 of the will, and each of said daughters was put in possession of their respective shares. (3) That Anne Eliza Harrell, widow of Elisha, died on the 5th of March, 1903, not having remarried. (4) That Louisa Harrell, one of the four daughters mentioned in item 2 of the will, intermarried with one Richard Webb in January, 1898, and died on the 12th of September, 1902, intestate, and without ever having had a child. That John and Jesse Harrell, mentioned in item 2 of the will, are dead, and plaintiffs are their descendants and only heirs at law. That Opperlina Harrell died domiciled in said state and county in October, 1906, leaving two illegitimate children, who are defendants. That said Opperlina Harrell was never married, and had no children at her father's death. The action is to recover that portion of the 290 acres of land devised by item 2 of Elisha Harrell's will which was set apart to Opperlina Harrell the plaintiffs being, as stated, the descendants and only heirs at law of John and Jesse Harrell, and defendants the illegitimate children of Opperlina. On the facts stated, the court being of the opinion that plaintiffs were the owners of the land in controversy, judgment was entered in their favor, and defendants excepted and appealed.

W. O. Howard, for appellants.

Kitchin & Allsbrook and G. M. T. Fountain, for appellee.

HOKE J.

The clause of the will here in question conveyed to the four daughters named an estate of remainder in fee, after the life estate of their mother, and determinable as to each holder's share on her dying without leaving a lawful heir. Sessoms v. Sessoms, 144 N.C. 121, 56 S.E. 687; Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904. Under several of the more recent decisions of the court the event by which the interest of each is to be determined must be referred, not to the death of the devisor, but to that of the several takers of the estate in remainder, respectively, without leaving a lawful heir. Kornegay v. Morris, 122 N.C. 199, 29 S.E. 875; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435, 60 Am. St. Rep. 574; Buchanan v. Buchanan, 99 N.C. 308, 5 S.E. 430. And by reason of the terms in which the contingency is expressed, "that if each or all of the girls dies without leaving a lawful heir, then the land," etc., and other indications which could be referred to, the estate does not become absolute in the other daughters on the death of one of them, without leaving such heir, but the determinable quality of each interest continues to affect such interest until the event occurs by which it is to be determined, or the estate becomes absolute. Galloway v. Carter, 100 N.C. 112, 5 S.E. 4; Hilliard v. Kearney, 45 N.C. 221. The application of these authorities, and their effect on the terms of the devise, are not more fully stated, for the reason that on the hearing below the right of the respective parties to the share of Opperlina Harrell, which is the subject-matter of the present suit, was properly made to depend on the question whether the death of this devisee, leaving two illegitimate children, and without ever having been married, would terminate the contingent quality of her estate, and cause the same to pass by descent in absolute ownership to these children, who are defendants, and in present possession of the property.

Our statute on this subject (Revisal 1905, c. 30, rule 9) provides: "That when there shall be no legitimate issue every illegitimate child of the mother, and the descendants of such child deceased, shall be considered an heir, and as such, shall inherit her estate." By the express words and plain import of the statute, therefore, these two children of the devisee fill the description required by the terms of the devise, "if she should die without leaving a lawful heir," and meet the condition on which their mother's estate should become absolute; and there is direct authority with us upholding this position. Fairly v. Priest, 56 N.C. 383. In that case it was held: "Where a testator by his will gave property to a son and three daughters, with a provision that on the death of either of them intestate, or without heirs of his or her body, his or her share should go over, it was held that the intention was not that it should go over on the death of the mother of an illegitimate child, but that the latter was entitled to his m...