Sain v. Baker

• Decision Date: 14 May 1901
• Citation: 128 N.C. 256,38 S.E. 858
• Court: North Carolina Supreme Court
• Parties: SAIN et al. v. BAKER et al.

38 S.E. 858

128 N.C. 256

SAIN et al.

v.BAKER et al.

Supreme Court of North Carolina.

May 14, 1901.

TRIAL—OBJECTION—WAIVER—WILL—HEIRS —REMAINDERS—CONSTRUCTION.

1. Where, on trial of an action in ejectment, defendants claimed under the will of a former owner, and the court excluded the question, asked on dross-examination of plaintiff's witness, whether such former owner died testate or intestate, defendants' objection to such ruling was waived by their afterwards introducing the will in evidence.

2. Where, on the trial of an action in ejectment, defendants claim under the will of a former owner, and they ask plaintiffs witness, on cross-examination, whether such owner died testate or intestate, it is not error to exclude such question, since defendants could not introduce the will on cross-examination.

3. Where a testator devised lands to his son, provided that in case the son should die before his wife, and without heir or heirs, the land should be sold, and the proceeds be equally divided between testator's three daughters, the words "heir or heirs" should be construed to mean "issue" or "children"; otherwise, the limitation over to the sisters of the son would be in vain.

4. A testator devised lands to his son, provided that in case the son should die before his wife, and without heir or heirs, the land should be sold, and the proceeds equally divided between testator's daughters. The son died before his wife, but after the death of his father, without issue, leaving a will by. which he devised the land to his wife for life, with remainder to the defendant. Held, under Code, § 1327, providing that every contingent limitation in a will made to depend on the dying of any person without issue should be held a limitation to take effect when such person shall die, not having such issue living at the time of his death, or within 10 lunar months thereafter, unless the intention of such limitation be otherwise ex pressly declared in the will, that the limitation in the father's will took effect on the death of the son, and the son had no power to divert the lands from his sisters to his wife and defendant.

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

Action in ejectment by S. A. Sain and others against M. J. Baker and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

A. L. Quickel, Osborne, Maxwell & Keerans, and Jones & Tlllett, for appellants.

D. W. Robinson, for appellees.

CLARK, J. The first exception, that the court refused to permit a witness to be asked on cross-examination whether J. W. Leonhardt died intestate, or left a will, became immaterial, and need not be considered, for the defendants afterwards introduced the said will. The defendants could not have introduced the will, on cross-examination, In evidence. Olive v. Olive, 95 N. C. 485. The second exception was abandoned.

Daniel Leonhardt died in 1860, and by his will, bearing date the same year, he devised the first three tracts mentioned in the complaint to his son, J. Wesley Leonhardt. It was admitted in open court, and also in the pleadings, that Daniel Leonhardt at the time of his death had title to the same, and that the plaintiffs are the sole heirs of Daniel Leonhardt, since the death of J. Wesley Leonhardt, who died leaving no children. It was also admitted that the title to the fourth and fifth tracts was in J. Wesley Leonhardt, at his death, and that both plaintiffs and defendants claim title under him. By the third item of the will of Daniel Leonhardt, he devised the first three tracts to his son, Wesley Leonhardt, aforesaid. But by the seventh item thereof he provides: "My will and desire is that all the lands and negro boy Samuel that I have willed to my son Wesley, provided he should die before his present wife, and without any lawful heir or heirs, In that case the lands and said negro boy I direct to be sold, and the proceeds thereof to be equally divided between my three daughters" (naming them). The plaintiffs are one of the three sisters, and the children of the other two. It was uncontradicted evidence that J. Wesley Leonhardt died before his wife, who was the only wife he ever had, and that he died without leaving or having had any issue. The entire will must be construed together. Item 7 thereof, taken in connection with item 3, created a contingent executory devise, after a fee conditional, for the benefit of plaintiffs, should Wesley Leonhardt die without lawful heir or heirs. Kornegay v. Morris, 122 N. C. 202, 29 S. E. 875; Baird v. Winstead, 123 N. C. 182, 31 S. E. 390; Watson v. Smith, 110 N. C. 8, 14 S. E. 640, 28 Am. St. Rep. 665; Fortescue v. Satterthwaite, 23 N. C. 566. From the context, it is clear that the words "without any lawful heir or heirs, " in item 7, are used in the sense of dying "without issue or children"; otherwise, the limitation orer to Wesley's sisters, Daniel Leonhardt's daughters, would have been in vain. Rollins v. Keel, 115 N. 0. 70, 20 S. E. 209. This limitation over is not void for remoteness, and took effect at the death of the devisee, Wesley Leonhardt, without issue, by virtue of the act of 1827, now Code, § 1327. Buchanan v. Buchanan, 99 N. C. 310, 5 S. E. 430. The defendants...