Watson v. Smith

• Decision Date: 01 March 1892
• Citation: 14 S.E. 640,110 N.C. 6
• Court: North Carolina Supreme Court
• Parties: Watson v. Smith.

14 S.E. 640

110 N.C. 6

Watson

v.Smith.

Supreme Court of North Carolina.

March 1, 1892.

Wills—Nature oe Estate—Contingent Remainders—Assignment.

1. A will devised property to a person for life, and at his death to such of his children as might then be living, but, should he die without issue living at his death, then to be equally divided between certain persons and their heirs forever. Held, that the limitation to the last-named persons was not an executory devise, but a contingent remainder, dependent upon the determination of the estate of the life-tenant without issue.

2. The said persons had at least a possibility, coupled with an interest in the estate; and its assignment for a valuable consideration, free from fraud or imposition, while void in law, was enforceable in equity.

Appeal from superior court, Wake county; Connor, Judge.

This was a suit by J. W. B. Watson against W. T. Smith, trustee, involving the construction of a will. The controversy was submitted without action. From a judgment for plaintiff, defendant appeals. Affirmed.

F.H. Busbee, for appellant.

Geo. V. Strong, for appellee.

Shepherd, J. The particular provision in the will of J. O. Watson, the construction of which is involved in this controversy, is by no means a stranger to this court. In Watson v. Watson, 3 Jones, Eq. 400, the court declared that, the land being limited by way of contingent remainder to persons not in esse, it had no power to order a sale for the purpose of converting it into more beneficial property. In Watson v. Dodd, 68 N. C. 528, it was held that the contingent interest of one of the devisees, expectant upon the death of the life-tenant without issue, could not be subjected to the payment of his debts. The question now presented is whether the interests of such devisees are assignable by deed, either in law or equity. The limitation was to John W. B. Watson for life, and at his death to such child or children of the said John as might then be living; but, should he die without issue living at his death, then to be equally divided between George W. Watson, William H. Watson, Henry B. Watson, and Owen L. Dodd, and their heirs, forever. What interests did these last-named persons take under the will? In the first of the cases above cited it was said that the limitation was to John for life, with a contingent remainder to such of his children as might be living at his death, and that the persons above mentioned were to take by way of executory devise, in the event of a failure of issue upon the death of the life-tenant. In the latter case it was suggested, though not decided, that the limitation to these persons was a contingent remainder. In this view we entirely concur. An executory devise is strictly such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules of limitations in conveyances at common law, but it is never construed to be such if it is possible that it should take effect as a remainder. Fearne, Rem. 386, 393. The limitation in question does not take effect after the limitation to the...