Harris v. Russell

• Decision Date: 02 May 1899
• Court: North Carolina Supreme Court
• Parties: HARRIS. v. RUSSELL.

32 S.E. 958

(124 N.C. 547)

HARRIS.

v.RUSSELL.

Supreme Court of North Carolina.

May 2, 1899.

Antenuptial Contract—Construction.

An antenuptial contract provided that, if the wife survived, she should have a life estate in certain land, and "at her death" it should descend to the husband's heirs. Held, that the heirs took a vested remainder on the death of the husband.

Appeal from superior court, Mecklenburg county; Coble, Judge.

Controversy between S. A. Harris and Kate Russell. There was a judgment for Harris, and Russell appeals. Affirmed.

Burwell, Walker & Cansler, for appellant.

Osborne, Maxwell & Keerans, for appellee.

FAIRCLOTH, C. J. Controversy without action, under Code, § 567. Plaintiff's father, in 18C8, entered into a marriage contract (Exhibit A) with his intended wife, in which he stipulated that, if she survived him, "then in that case she should be entitled to the use, possession, and enjoyment of the lot owned by him [lot No. 54 in square 8 of the city of Charlotte], with all the improvements thereon, for and during the term of her natural life, and at her death said real estate to descend to the heirs at law of said party of the first part, " the plaintiff's father, who died in 1870. The widow is still living, and the plaintiff, at his father's death, was, and still is, his only heir at law. The widow conveyed her interest in 1893, to the plaintiff, who, in 1896, conveyed in trust for the defendant, and took her notes for the purchase price. She paid a part, and now refuses to pay the balance, on the ground that the plaintiff cannot make her a good title during the lifetime of the widow. The only question is whether the estate vested in the plaintiff at his father's death. In Rives v. Frizzle, 43 N. C. 237, there was a bequest to the widow for life, and "after her death to be equally divided among his lawful heirs." Held a vested legacy at the time of his death. In Brinson v. Wharton, Id. 80, a testator bequeathed all the residue to his wife "during her widowhood, and, when she marries, then that all the remaining property, both real and personal, shall be equally divided between hischildren and beloved wife, share and share alike." Held a vested remainder. In De Vane v. Larkins, 56 N. C. 377, upon similar facts, the decision was the same. In each of the above cases it was a conveyance by devise, and it was held that, if one of the heirs died before the death of the widow, or the happening of the future event, his or her share went to his...