Hooker v. Bryan

• Decision Date: 27 February 1906
• Citation: 53 S.E. 130,140 N.C. 402
• Parties: HOOKER et al. v. BRYAN et al.
• Court: North Carolina Supreme Court

53 S.E. 130

140 N.C. 402

HOOKER et al. v. BRYAN et al.

Supreme Court of North Carolina

February 27, 1906

Appeal from Superior Court, Beaufort County; Ward, Judge.

Submission of controversy between Ella B. Hooker and others and Elizabeth Bryan and others. A judgment was rendered in favor of plaintiffs, and defendants appeal. Affirmed.

Testatrix devised the residue of her real estate to H. "upon his becoming 21 years of age," and lent the same to her sister until such event. She also lent to such sister her personal property, in trust for H. until he became 21 years of age. Held, that the clause "upon his becoming 21 years of age" should be construed merely to postpone the enjoyment of the estate, which was a remainder vesting in H from the date of testatrix's death.

Controversy submitted on a case agreed. The pertinent facts presented by the record are as follows: Caroline Bonner died, having made her last will and testament, disposing of certain real and personal property, and the parties plaintiff and defendant are claimants under sad will. The rights of the parties depend upon the following items in said will: "(5) I give the residue of my real estate to my beloved nephew Roscoe Hooker, upon his becoming 21 years of age, and lend the same to my beloved sister, Ella Bonner, until my nephew Roscoe Hooker, is 21 years old. (6) I lend to my beloved sister, Ella Bonner, the mule and other personal property upon the farm, in trust for Roscoe Hooker until he becomes 21 years old. (7). I give to my beloved nephew, Roscoe Hooker the mule and any other personal property that may be upon the farm." Roscoe Hooker, the nephew, died after the death of Caroline Bonner, and before becoming 21 years of age, and the plaintiffs are the heirs at law and personal representatives of said Roscoe Hooker. The defendants are the heirs at law and personal representatives of Caroline Bonner, the testatrix, including Ella Bonner, who is one of the heirs at law and next of kin of Caroline Bonner, and is also the Ella Hooker mentioned in the items of said will. On these facts the question submitted was as to the ownership of the real property in item 5, and of the personal property mentioned in items 6 and 7, of the will, and thereupon the court adjudged that the plaintiffs, the heirs at law of Roscoe Hooker, are the owners of the real property in item 5, and the personal representatives of said Hooker are the owners of the personal property in items 6 and 7, from which judgment the defendants excepted and appealed.

Ward & Grimes for appellant. W. C. Rodman for appellee.

HOKE J. (after stating the case).

The words "on or upon," when affecting the quality of an estate in reference to the time of its vesting or enjoyment, are substantially synonymous with ""when." Adams v. Williams, 2 Watts & S. (Pa.) 227; Womrath v. McCormick, 51 Pa. 504. In bequests of personal property these words usually import a condition, and, unless explained or controlled by some expressions or other provisions of the will, they are annexed as conditions precedent to the substance of the gift and render the interest contingent. This has been the doctrine in the English courts since the case of Hansom v. Graham, 6 Vesey, 239, and is well established here. Giles v. Franks, 17 N.C. 521; De Vane v. Larkins, 56 N.C. 377. While several modern text-writers of approved excellence and many decisions seem to give these words the same significance in reference to devises of real and bequests of personal property, the older authorities hold that in respect to realty "when and upon" import usually a condition subsequent determinative of the estate according to the terms of the condition, and that in the meantime the estate would vest. Lewis, Blk. 513, note 144; Roper on Legacies, vol. 2, p. 386.

The distinction has no practical bearing on the case before us and it is therefore not desirable to dwell upon it, nor is it necessary to determine if the same now exists; for all of the authorities are agreed that both as to real and personal property "when and upon" may be so explained and controlled by other expressions and provisions of the will that they do not import a condition at all, but simply refer to the time of enjoyment, and that the interest conferred will vest at the testator's death to be possessed and enjoyed at the time indicated. In 1 Roper on Legacies, 386 the doctrine is thus expressed: "But all these and similar words may be so explained and controlled by the context of the will as not to prevent the legacies from vesting before the happening of the events upon which they are payable. In such instances, the intention of the...