Kornegay v. Morris

• Decision Date: 05 April 1898
• Citation: 122 N.C. 199,29 S.E. 875
• Court: North Carolina Supreme Court
• Parties: KORNEGAY . v. MORRIS.

29 S.E. 875

122 N.C. 199

KORNEGAY .

v.MORRIS.

Supreme Court of North Carolina.

April 5, 1898.

Wills—Construction—Conditions.

A will provided a guardian for a minor son, to whom land was devised on the condition that, if he should die without issue, the income should go to testator's wife during her life or widowhood, and, in the event of her marriage or death, the land should go to another son. Held, that the time when the conditions should happen was not limited to testator's death, in view of Code, § 1327, providing that a contingent limitation depending on the dying of any person without issue takes effect when such person shall die not having such issue, unless the will declares otherwise; and hence, after testator's death, and before the minor son has a child, and after the decease of the other son, the widow remaining unmarried has a contingent estate in the land. Faircloth, C J., dissenting.

Appeal from superior court, Wayne county; Timberlake, Judge.

Action by Albert U. Kornegay against John R. Morris on a note given for the price of land. Judgment for plaintiff, and defendant appeals. Reversed.

The thirteenth clause of the will provided "that my son W. F. Kornegay shall act as guardian to my son Albert U. Kornegay, * * * and shall settle with him when he shall attain his majority."

Aycock & Daniels, for appellant.

Allen & Dortch, for appellee.

FURCHES, J. In May, 1883, James F. Kornegay made and published his last will and testament, and in August of that year he died. Said will, after the death of the testator, was duly admitted to probate in Wayne county, and the executor, VV. F. Kornegay, therein named, qualified. The testator left him surviving a widow, Frances

E. Kornegay, and three sons, the said W. F., J. J., and A. U. Kornegay. who are the legatees and devisees mentioned in the will; W.

F. being the oldest, and some 50 years of age, and A. U. the youngest, and not 21 when his father, the testator, died. J. J. has since died, and since his death W. F. has died, and A. U. has reached his majority of 21 years. Since the death of J. J. and W. F., and since the said A. U. reached his majority, the complaint alleges that he has bargained and sold to the defendant, Morris, a lot in the city of Goldsboro for $300. The plaintiff executed a bond for title to said lot, and the defendant executed his note for the purchase money, which is now due. The plaintiff has tendered to the defendant a deed conveying said lot to the defendant, and the defendant refuses to pay the same. The defendant answers, and says that he is ready, able, and willing to pay for said lot according to the contract, if he can get a clear, indefeasible title thereto; but that said lot is a part of the real estate owned by the said James F. Kornegay, and disposed of by him in the fourteenth paragraph of his will; and that the defendant is advised that the plaintiff cannot make and convey to him such title. The widow, Frances E. Kornegay, is still living. This makes it necessary that this section 14 of said will shall be construed, so far, at least, as to determine the question presented, —whether the plaintiff can make a clear, indefeasible title to said lot so contracted for and sold to the defendant. It is stated that W. F. Kornegay died intestate, without leaving issue, or any lineal descendants, and leaving the plaintiff his sole heir. The testator gave to his wife, Fanny, considerable property for life, which, in the eleventh clause of his will, he gave to his son W. F. in trust for his sons John J. and Albert U. after her death, and in the fourteenth item he provides as follows: "If my sons John and Albert should either one of them die without legitimate offspring, my will is, and I do hereby direct, that that portion of my estate given to the one so dying shall go to the son still living; and, if both shall die without legitimate offspring, the income arising from both their portions shall go to my wife, Fannie E. Kornegay, during her life or widowhood; and, in the event of the marriage or death of my wife, Fanny, then the portion set aside for them to go to my son W. F. Kornegay and his legal representatives." It is manifest from these provisions that it was not within the contemplation of the testator that these limitations should be fulfilled during his lifetime. It cannot be that when he provided a guardian for his son Albert he expected Albert to die In his lifetime, nor can it be that when he made a provision for his wife, to be void upon her marrying, he could have expected her to marry during his lifetime. So that Hilliard v. Kearney, 45 N. C. 229, Burton v. Conigland, 82 N. C. 99, and other cases cited for the purpose of establishing this position, are not in point. None of the cases cited conflict with this opinion as to the time not being limited to the testator's death when the conditions or contingencies should happen. But, if there had been any doubt as to this (and we think there is not), the statute of 1827, now section 1327 of the Code, and the case of Buchanan v. Buchanan, 99 N. C. 308, 5 S. E. 430, have, in our opinion, settled all doubt on this point. The devisees John J. and Albert U. took cross remainders, and, John dying, and leaving no issue, his part went to Albert. Galloway v. Carter, 100 N. C. Ill, 5 S. E. 4; Spruill v. Moore, 40 N. C. 284. But Albert is still living, and has no children, which made the estate of W. F. Kornegay a contingent executory devise. The person (W. P.) being certain, but the event upon which his estate depended being uncertain, it was such a contingent estate as might be transmitted by descent. 2 Fearne, Rem. pp. 28, 30, 433; Fortescue V. Satterthwaite, 23 N. C. 566. And,...