Robertson v. Andrews

• Decision Date: 08 May 1918
• Docket Number: 443.
• Parties: ROBERTSON ET AL. v. ANDREWS ET AL.
• Court: North Carolina Supreme Court

95 S.E. 892

175 N.C. 492

ROBERTSON ET AL. v. ANDREWS ET AL.

No. 443.

Supreme Court of North Carolina

May 8, 1918

Appeal from Superior Court, Mecklenburg County; Long, Judge.

Proceedings by Julia J. Robertson and others against William J. Andrews and others to procure sale of land, and asking for construction of will. From the decree rendered, H. C. Jones as guardian ad litem to the unborn children of William R Johnston, appeals. Affirmed.

Clark C.J., and Hoke, J., dissenting in part.

Under devise to testator's children with provision that on death of either of them without surviving child his portion should be equally divided among those surviving the survivors on death of a child without issue take his share in fee discharged of the limitation.

Hamilton C. Jones, of Charlotte, for appellants.

Clarkson & Taliaferro, of Charlotte, for appellee Johnston.

BROWN J.

The admitted facts appear to be that Col. William R. Johnston died in 1896, seised in fee of extensive real estate holdings in the city of Charlotte. His surviving children, devisees under his will, were Mrs. Julia M. Andrews, Mrs. Cora J Robertson, Franklin G. Johnston, and the appellee Wm. R. Johnston. All are dead except Wm. R. Johnston, who is unmarried and without children. Franklin G. Johnston was the last to die, and left no children. He died intestate, seised of the lot sold under his father's will.

The will contained this clause:

"5. In the event of the death of either of my children without leaving a child or children surviving, his or her portion is to be equally divided between those surviving; and upon the death of any one of my children leaving a child or children surviving, his or her portion of my estate shall be divided among the issue of such deceased child, such division to be made per stirpes, each of my children being allowed to hold and enjoy his or her portion of my estate during his or her life."

The superior court adjudged that Wm. R. Johnston was entitled to one-third of the proceeds of the sale absolutely, and that any child he may leave surviving him can have no interest in them.

It is manifest that the testator intended, and so expressed his intention, that the share of his estate derived by each of his children under his will should go to the ultimate survivor as between themselves in case any one of them died without surviving children. Franklin G. Johnston died intestate, leaving no children, having never married. The only survivor of the four children of the testator is Wm. R. Johnston. Consequently he took the entire estate of his brother, which had been devised to him by their father. Then the survivorship stops as to such estate of Franklin G. Johnston upon the principle that a portion going over to a survivor upon the death of the primary devisee vests absolutely in the survivor, and is no longer subject to the original limitation of the will. While the estate of Wm. R. Johnston directly derived under his father's will is subject to such limitation, that which he received from his brother by survivorship ceases to be.

The rule seems to be generally recognized by courts as well as text-writers that, where, under a will, it is provided that upon the death without issue of the first taker, his devise shall go to the survivor of the class, upon the happening of such contingency the share going over vests absolutely in the survivor; that is to say, "a share having once survived vests absolutely." It seems that this doctrine was at one time in dispute, and Lord Hardwicke in Pain v. Benson, 3 Atk. 78, held to the contrary, but it is now well established, both in this country and England. 3 Jarman on Wills, p. 560; 40 Cyc. 1513; 30 A. & E. 810; Woodard v. Glascock, 2 Vernon, 388; Perkins v. Micklethwaite, 1 P. Wms. 274. In Underwood on Wills, § 582, the author gives a clear statement of the law:

"In an early case it was held that where the testator gives a fund to several as tenants in common, whether as a class or as individuals, with a limitation to survivors upon the death of any of them unmarried or during minority, and one dies, his share goes to those who survive him, and if afterwards another dies, only the latter's original share goes to those who survive him, but not the interest which accrued to him; for that, says the court, is a new legacy, and, having vested, devolves upon his personal representatives. This rule is applicable when the will is silent. And the fact that the testator directs that the share of any legatee dying shall go to the survivors will not carry his accruing share. The word 'share' will conclusively be presumed to refer only to his original share, and not to any interest which may have been gained by him by reason of survivorship. The same rule applies where the testator employs the term 'portion.' Thus, where a fund was to be divided among the children of A., to be paid to each one on majority or marriage, and in case any one should die before his or her 'portion' should become payable, then to the survivors, the share which accrues before the date of payment does not pass with the original shares of the surviving child or children. * * * In the absence of a very clear expression of intention, it is settled that limitations or qualifications which are attached to the original shares do not attach to accruing shares. Thus, though the original shares are given for life only, a gift of the shares accruing by survivorship, in indeterminate language, may carry them absolutely. So, where an original share is limited over to survivors on the death of the primary legatee without issue, and the accruing shares are given generally, the accruing shares do not go over on death without issue,

...