Roberts v. Northwestern Bank, 443

• Decision Date: 25 August 1967
• Docket Number: No. 443,443
• Citation: Roberts v. Northwestern Bank, 156 S.E.2d 229, 271 N.C. 292 (N.C. 1967)
• Court: North Carolina Supreme Court
• Parties: Landon ROBERTS, Executor of the Estate of Emorie D. Edwards, Deceased, Eleanor Edwards Colby and Robert Doughton Edwards v. NORTHWESTERN BANK, Trustee under the Will of Robert L. Doughton, Deceased.

Page 229

156 S.E.2d 229

271 N.C. 292

Landon ROBERTS, Executor of the Estate of Emorie D. Edwards Deceased, Eleanor Edwards Colby and Robert Doughton Edwards v. NORTHWESTERN BANK, Trustee under the Will of Robert L Doughton, Deceased.

No. 443.

Supreme Court of North Carolina.

Aug. 25, 1967.

Meekins & Roberts, Asheville, for plaintiff appellees.

Whicker, Whicker & Vannoy, North Wilkesboro, for defendant appellant.

SHARP, Justice.

The question presented is whether the remainder which testator gave his daughter, Emorie, in the Reba Doughton trust estate and in his homeplace vested in her absolutely at his death or was contingent upon her surviving her sister, Reba, the life tenant. Decision turns upon the proper construction of the following provisions of Articles III and VI of the will:

'Upon the death of my daughter, Reba, the principal and any accumulated income of this trust shall be paid over, in fee simple absolutely, in equal shares, PER STIRPES, to my other children and my stepdaughter, Mabel Hicks Stevens * * * and upon the death of my said daughter, Reba, I give and devise the remainder of the trust property (the principal) under this Article VI (testator's homeplace) to my children and my stepdaughter, Mabel Hicks Stevens, in equal shares PER STIRPES as tenants in common in fee simple.'

If testator's direction that, at the death of Reba, the principal and accumulated income of the trust estate be paid over to his other children (three in number, who are named elsewhere in his will), and his stepdaughter (whom he obviously regarded as one of his children) 'in fee simple absolutely in equal shares, PER STIRPES' referred merely to the time the four might enjoy the estate in possession, the remainder was vested. If, however, the quoted provision means that a child had to survive the life tenant in order to acquire an interest in the property, Emorie's interest was contingent. If her remainder was contingent, since Reba survives and Emorie is dead, no interest ever vested in her.

The trial judge concluded that testator's three children (Emorie, Claude, and Horton) and his stepdaughter (Mabel) were contingent remaindermen and that their children (or other lineal descendants) who could answer the roll call at the death of Reba Doughton would take by purchase from testator and not by inheritance or under the will of the parent. We take a different view.

Except for the indiscriminate use of the term Per stirpes by the draftsman of testator's will, we apprehend that there would be no question but that the four children took vested remainders. Mason v. White, 53 N.C. 421.

'A remainder is vested when it is limited to an ascertained person or persons with no further condition imposed upon the taking effect in possession than the determination of the precedent estate. * * * A remainder is contingent if the taking in effect in possession is subject to a condition precedent either as to the persons who are to take or as to the event upon which the preceding particular estate is to terminate.' 33 Am.Jur., Life Estates, Remainders, etc. §§ 66, 68 (1941).

Accord, Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899; Carolina Power Co. v. Haywood, 186 N.C. 313, 119 S.E. 500; 1 Simes and Smith, Future Interests § 138 (2d Ed., 1956). 'The uncertainty which distinguishes a contingent remainder is not the uncertainty whether the remainderman will ever enjoy it, but the uncertainty whether there will be a Right to such enjoyment.' Tiffany, Real Property § 323 (3d Ed., 1939). (Emphasis added); accord, Carolina Power Co. v. Haywood, supra.

'A gift or grant of a life estate with remainder to a named person (or persons) on the death of the life tenant creates a vested remainder on the death of the testator.' 33 Am.Jur., Life Estates, Remainders, etc. § 115 (1941). 'A remainder limited without words of condition to a class of persons, one or more of whom is in existence and ascertained, is vested, though subject to be divested in part by the coming into existence or ascertainment of other members of the class.' 1 Simes and Smith, Future Interests § 165(2) (2d Ed., 1956). 'When a limitation of a remainder is in terms to a class, but really describes the persons who are to take as definitely as though they were named, and there is no indication of an intention that they shall take only in case they survive the termination of the particular estate, the remainder vests in them immediately upon its creation.' 33 Am.Jur., Life Estates, Remainders, etc. § 117 (1941). It is immaterial, therefore, whether the devise in question be considered one to testator's children as a class or one to named individuals.

The law favors the early vesting of estates, and, in the absence of an intent plainly inferable from the terms of the will, courts will construe a devise as vested at the death of the testator rather than at the termination of the particular estate. Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 113 S.E.2d 689; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341; Coddington v. Stone, 217 N.C. 714, 9 S.E.2d 420; American Yarn & Processing Co. v. Dewstoe, 192 N.C. 121, 133 S.E. 407; Witty v. witty, 184 N.C. 375, 114 S.E. 482. Conditions of survival are not implied unless it is clear that the testator so intended. 2 Simes and Smith, Future Interests § 576 (2d Ed., 1956).

'(T)he cases in which the courts imply a condition to the time of distribution actually expressed in the will, if taken literally, cannot be carried out unless the legatee or devises survived. This is obviously true where the gift is to A 'on his marriage.' Though not so obvious, it is believed to be equally true of a gift 'to A at his age of twenty-one,' if the language is taken literally. Indeed a literal interpretation of a gift 'to A to be paid at the age of twenty-one' would seem to require that A survive to that age, since no payment can be made to A unless he is alive. Thus, a requirement of survival is never implied in the absence of specific language giving rise to the implication; and the presumption in favor of a vested construction will often cause the court to call the condition a condition subsequent rather than a condition precedent. In those cases where a condition precedent of survival is found to exist, there is a literal basis for such implication because the direction in the will cannot be effectively carried out unless the devisee or legatee survives.' Ibid.

See Anderson v. Felton, 36 N.C. 55.

In Witty v. Witty, supra, the devise was to the testator's wife for life, and, at her death or remarriage, he directed that the land be sold and divided among his 'lawful heirs.' At the time of the testator's death, he was survived by his wife and five children. At her death, all five children were dead. None left children. The only one who married was the last to die, and he devised the property to his wife and adopted son. The court held that the original testator's five children took a vested remainder immediately upon his death and that the surviving son inherited the interests of the four who predeceased him. The entire property, therefore, passed by the fifth son's will. Stacy, J. (later C.J.), speaking for the Court said:

"As a general rule, the death of the testator is the time at which the members of a class are to be ascertained in case of a gift to the testator's heirs, next of kin, or other relatives, unless the context of the will indicates a clear intention that the property shall go to the heirs, next of kin, or other relatives at a different time, such as at the time of distribution, or at the death of the first taker, or at the date of the execution of the will. * * * Where the gift is to the heirs or next of kin of another than the testator, it ordinarily refers to the death of such other, unless the context of the will manifests that the class shall be determined at a different time, such as at the time of distribution.'

'Again, the fact that the direction is to sell the realty at the expiration of the preceding particular estate and to divide the proceeds derived therefrom ordinarily will not affect the general rule as to when the remainder is to vest.' Id., 184 N.C. at 379, 114 S.E. at 484--485.

As pointed out in 2 Simes and Smith, Future Interests § 585 (2d Ed., 1956), where a testator devises property to a life tenant and the remainder over is given with some such language as 'after the death of the life tenant,' it is sometimes urged that such language requires the remainderman to be living at the end of a particular estate and thus creates a remainder contingent upon survivorship. 'The American courts, however tend strongly to disregard such language as mere surplusage, and hold that the interest of the remainderman is vested and transmissible.' See Central Carolina Bank & Trust Co. v. Bass, 265 N.C. 218, 238--239, 143 S.E.2d 689, 703--704, and 33 Am.Jur., Life Estates, Remainders, etc. §§ 112--114 (1941).

In Pridgen v. Tyson, 234 N.C. 199, 66 S.E.2d 682, the...