Patterson v. McCormick

• Decision Date: 27 May 1919
• Docket Number: 409.
• Parties: PATTERSON et al. v. McCORMICK et al.
• Court: North Carolina Supreme Court

99 S.E. 401

177 N.C. 448

PATTERSON et al. v. McCORMICK et al.

No. 409.

Supreme Court of North Carolina

May 27, 1919

Appeal from Superior Court, Scotland County; Harding, Judge.

Action by D. A. Patterson and others against Sallie E. McCormick and others. Verdict and judgment for defendants and plaintiffs appeal. Error.

This is an action to recover land. The lands in question were owned by Hugh L. Patterson, who died September, 1870, leaving a will, which reads as follows:

"In the name of God, amen. I make this my last will and testament, viz.:

"Item 1. I will and bequeath to my beloved mother the plantation she now resides on during her lifetime, with all the growing crop and everything connected with the place except as hereinafter mentioned.

"Item. 2. I will and bequeath to my nephew John D. Jowers one sorrel horse Charlie.

"Item 2. I will and bequeath to my nephew Clem Jowers one bay colt.

"Item 3. After the death of my mother I will and bequeath the plantation above mentioned to my nephews John D. and Clem Jowers, to be divided equally between them. In case they or either of them die without issue, it is my will that the property herein bequeathed shall go to the heirs of Arch'd and Gilbert Patterson and to the surviving brother John D. or Clem Jowers, as the case may be, to be equally divided between them.

"Item 4. To the heirs of my brother Arch'd Patterson, I give the original capital invested in the firm of R. Lilly & Co. at Floral College and afterwards transferred to Shoe Heel Depot under the title of Lilly & Patterson and all the profits accruing therefrom.

"Item 5. To the heirs of Gilbert and Margaret Patterson I bequeath the McKay plantation, together with all my landed interests as Shoe Heel Depot money and everything else not hereinbefore mentioned. Also ten bales of cotton out of the present growing crop on the plantation bequeathed in item first of this will, and all other property not hereinbefore mentioned.

"Item 6. I hereby appoint Gilbert Patterson as executor of this my last will and testament.

"Item 7. It is my will that the lands which I purchased at the bankrupt sale of William Patterson, if not redeemed this ensuing fall, shall go to the heirs of my brother Arch'd Patterson; if redeemed, that the money, five hundred dollars in amount, shall go to the same. Aug. 30th, 1870."

Nancy Patterson, the mother of the testator, who is referred to in the first item of the will, died 10th September, 1877.

John D. Jowers, referred to in items 2 and 3 of the will, a nephew of the testator, died 8th January, 1904, without leaving any issue surviving him. Clem Jowers is still living and has several children.

At the death of the testator John D. and Clem Jowers were both minors unmarried, and resided with testator, and were supported by him. Arch'd Patterson, mentioned in item 3, was a brother of the testator, and died prior to the death of the testator.

Gilbert Patterson, mentioned in the third item, was a brother-in-law of the testator. Gilbert Patterson's wife, Margaret, was a sister of the testator, and she died prior to the date of the will. The defendant Sallie E. McCormick purchased the land for value in 1883, and the other defendants claim under her.

It is contended by the plaintiffs, as shown by the complaint, that although John Jowers died after the death of the life tenant, Nancy Patterson, the testator's mother, yet, because he died without issue, the entire property is to be divided at this time between the heirs of Archibald and Gilbert Patterson and Clem Jowers; if, upon the death of Clem Jowers, none of his children survive him, the entire property must necessarily be divided again among the heirs of Arch'd and Gilbert Patterson.

The defendants, on the other hand, contend that upon the death of the life tenant, Nancy Patterson, the mother of the testator, the entire estate devised in the third item of the will was to be divided between John and Clem Jowers and then vested absolutely and unconditionally in them, both of them having survived the life tenant; and inasmuch as the defendants have acquired by purchase the title of both John D. and Clem Jowers to the lands mentioned in the first item and the third item of the will, they are the owners of said lands in fee simple.

The defendants also contend that, although their construction of the will may be wrong, this construction prevailed at the time of their purchase, and that they are protected under the doctrine of stare decisis. The court instructed the jury if they believed the evidence to answer the issues in favor of the defendants. The plaintiffs excepted.

There was verdict and judgment for the defendants, and the plaintiffs appealed.

Cansler & Cansler, of Charlotte, Russell, Witherspoon & Gibson, of Laurinburg, and G. B. Patterson, of Maxton, for appellants.

W. H. Neal and Cox & Dunn, all of Laurinburg, McLean, Varser & McLean and McIntyre, Lawrence & Proctor, all of Lumberton, and Tillett & Guthrie, of Charlotte, for appellees.

CLARK C.J.

This controversy turns almost entirely upon the construction given to these words in item 3 of the will, "In case they or either of them die without issue," and this depends upon the act of 1827, now Revisal 1581, which reads as follows:

"Every contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person shall die, not having such heir, or issue, or child, or offspring, or descendant or other relative (as the case may be) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it: Provided, that the rule of construction contained in this section shall not extend to any deed or will made and executed before the fifteenth of January, one thousand eight hundred and twentyeight."

If the time of dying without issue is to be referred to the death of John D. and Clem Jowers during the existence of the life estate of their mother, Nancy Patterson, the title of the defendants is good, because John D. and Clem survived the life tenant, and neither died, during her life, leaving no issue; but if the time is the death of John D. and Clem, the title of the defendants is defective unless protected by the doctrine of stare decisis, as John died leaving no issue.

At common law a limitation contingent upon death was held to be an indefinite failure of issue and was void for remoteness.

In the application of this principle, and in order to avoid as far as possible defeating the intent of the grantor or testator, if there was in any deed or will an intermediate period, such as the termination of the life estate, a period fixed for division, arrival at full age, or the like, the courts held that "dying without issue was referable to this intermediate period." This was the rule laid down in Hilliard v. Kearney, 45 N.C. 221, at June term, 1853, which was based on no precedent in this state, but cited and relied solely upon English decisions. The statute of 1827 forbade its application to deeds or wills executed prior to 15th January, 1828, and the will construed in Hilliard v. Kearney had been executed in 1775.

The statute of 1827 changed the principle, making the limitation "dying without issue" void for remoteness, and abrogated the rule of construction which applied it to an intermediate period. This statute applied to all limitations contingent upon dying without issue, and is not restricted to those where there is no intermediate estate. The language is "every contingent limitation," and there is no exception from its operation.

The statute also establishes a new rule of construction, and fixed as the time for dying without issue "when such person shall die," and in this case John and Clem or one of them.

This rule laid down by the statute is obligatory on the courts, and must be observed in all cases except, as provided by the statute, when a contrary intent is "expressly and plainly declared in the face of the deed or will." And we find no such contrary intent in the will before us.

The contention of the defendant is that while the above propositions are true, and the provision of the statute is clear and unambiguous and is obligatory on the court, yet that at the time the title to the land in controversy was acquired by those under whom the defendants claim there had been a line of decisions placing a different construction upon such words in a deed and will.

Even if it were true that there had been decisions construing such limitation contrary to the plain intent of the statute, the statute must govern, and not the erroneous construction of the courts. In order to make a line of decisions a rule of property, they must be uniform and consistent, and not in conflict, within the plain expression of the statute; for the statute law, unless in conflict with some provision of the Constitution, is supreme on examination we find that while there are some decisions of the tenor of Hilliard v. Kearney, upon examination they have not been uniform, and, on the contrary, have been almost invariably in cases where the will or deed construed came within the exception in the statute of 1827, that "this section shall not extend to any deed or will made and executed before 15th January, 1828," and a few cases in which it does not appear at what date the instrument was recorded, and others in which the court does not refer to the statute. There has not been by any means a...