Jones v. Heirs

• Decision Date: 31 January 1814
• Citation: 4 N.C. 157,1 Car. L. Rep. 544
• Court: North Carolina Supreme Court
• Parties: JONES AND WIFE v. WILLIAM SPAIGHT'S HEIRS.

4 N.C. 157

1 Car. L. Rep. 544

JONES AND WIFE

v.WILLIAM SPAIGHT'S HEIRS.

SUPREME COURT OF NORTH CAROLINA

JANUARY TERM, 1814

A devise of land "to A. and the male heirs of his body, lawfully issuing, and if A. dies without leaving lawful issue as aforesaid, I give the land to the eldest son of B.," means a dying without issue living at the death of A., and the devise is a good executory one to B.'s oldest son.

GEORGE MERRICK, by a clause in his will, devised as follows: "I give and bequeath to my nephew, George M. Leach, and to the male heirs of his body lawfully issuing, the lands purchased of Jeremiah Vail. Now, if the said George M. Leach dies without leaving lawful issue as aforesaid, in such case I give the said lands to the eldest son of my niece, Mary Spaight, and Colonel Spaight, deceased."

The eldest son of Mary Spaight and Colonel Spaight, at the date of the will and at the death of the testator, was William Spaight, who died shortly thereafter, leaving the defendants his heirs at law.

George M. Leach has since died intestate and without issue, leaving two sisters (one of whom is wife of the plaintiff) his heirs at law.

The question submitted to this Court is whether the plaintiffs are entitled to claim any, and, if any, what part, of the lands comprehended in the above devise.

HENDERSON, J. We are, in fact, called upon to say whether the devisor meant that his lands should vest in William Spaight, on the death of George M. Leach without having issue living at his death, or whenever the issue of George M. Leach should fail, however remote that period might be; for if the devisor meant that they should vest on the happening of the first mentioned contingency, the devise to William Spaight is good, as an executory devise, and the plaintiffs are entitled to no part of the lands; if, on the happening of the second, they are entitled to part of them, as some of the co-heirs of George M. Leach, the devise to William Spaight being void, on account of the remoteness of the contingency.

It is really questionable, from the words themselves, on which contingency the devisor intended the lands to vest in William Spaight. But when we consider the one as a lawful intent and may be effectuated, the other an unlawful one and must be frustrated, we have no hesitation in saying that he meant that the lands should vest in William Spaight on the death of George M. Leach without leaving issue living at his death; for where the words are doubtful, we should presume a lawful rather than unlawful intent; and the cases relied on by the plaintiff fortify us in our opinion. For in England, where they have estates tail, these words are construed to mean, when applied to real estate, an indefinite failure of issue, to effectuate the presumed intent of the

devisor; that after the issue of his favorite devise...