Blackwood v. Blackwood

DeNNY, J. The determinative question on this appeal is whether Clara J. Blackwood, the widow of the testator, took a defeasible fee simple estate under the testator’s will or a life estate. *728 It is well settled that if she took a fee simple estate, defeasible only upon her remarriage, the limitation over would be an executory devise. In such case her renunciation would not accelerate the limitation over, but the will would be construed in the same way as if there had been no renunciation. Simes, Law of Future Interests, Volume 3, section 760, page 244; 31 C.J.S., Estates, section 121 (1) (a), page 134. “While a contingent remainder may be destroyed at common law by fine or recovery, by merger of the particular estate, or by any displacement thereof, an executory devise cannot be defeated by destruction of the precedent estate by disseizin, forfeiture, surrender or merger.” 19 Am. Jur., Estates, section 129, page 585. However, if the widow took a life estate only under the will of her husband, L. J. Blackwood, then the remainder was vested in the children of the testator, and when she dissented from the will, they became vested absolutely and unconditionally with title to the real and personal property of the testator’s estate, subject only to the statutory rights of the widow. Under our decisions, a devise by a husband to his wife, so long as she remains his widow, is at most only a life estate. Alexander v. Alexander, 210 N.C. 281, 186 S.E. 319; Sink v. Sink, 150 N.C. 444, 64 S.E. 193; In re Brooks’ Will, 125 N.C. 136, 34 S.E. 265. In the matter of In re Brooks’ Will, supra, the testator disposed of his property in the following words: “I will and bequeath all my real and personal property to my beloved wife, Martha B. Brooks, to have and possess as long as she remains my widow. Should she remarry, then the law is my will.” Montgomery, J., speaking for the Court, said: “The language of the will clearly shows that the intention of the testator was to limit the estate of the widow to a life estate. A time was fixed beyond which that interest could not extend. She was ‘to have and possess the property as long as she remains my widow.’ Her death terminated of course her widowhood, and with the ending of that condition, ended also the estate of the widow. . . . He knew that at her death the property would revert to his heirs at law, and he felt that it would be unnecessary to say so, for he had already limited her estate to one durante viduitate. By the further expression ‘should she remarry, then the law is my will,’ he meant simply that she should enjoy, after her remarriage, only such part of his estate as the law would invest her with, whether with or without his sanction or consent and that the children would come in possession at once of the whole, less that part fixed upon her by law. Section 2180 of the Code (now G.S. 31-38) cannot be invoked for the purpose of extending the estate to a fee, for, as we have seen, the intention of the testator was clear to limit it at most to an estate for her life.” In the case of Sink v. Sink, supra, the will contained the following language: “I give and bequeath to my wife the remainder of my land, *729 . . . to have and to bold to ber own proper use and beboof . . . during tbe term of ber widowhood, and after ber remarriage to be equally divided between my brothers and sisters.” Tbe Court said: “We are of opinion that tbe estate in tbe land devised to tbe widow could not endure beyond ber life”; and cited with approval Fuller v. Wilbur, 170 Mass. 506, 49 N.E. 916, where tbe devise was as follows: “I give and bequeath to my beloved wife all my real and personal estate, of whatever name, for ber sole use and benefit so long as she remains my widow, . . .” Tbe Massachusetts Court, in construing tbe will, said: “Tbe words, ‘so long as she remains my widow,’ imply a continuance of tbe estate during widowhood, and no longer; and, at most, it could not extend beyond ber life.” Our Court also cited in the Sink case, Kratz v. Kratz, 189 Ill. 276, 59 N.E. 519, where tbe devise was to tbe wife during ber widowhood, of tbe real and personal estate, “absolutely and unconditionally,” and in which tbe Illinois Court held that ber interest was limited to tbe period of ber widowhood — that is, during ber life or until she remarried. In Alexander v. Alexander, supra, the testator, in substance, said: “I lend to my wife tbe balance of my estate . . . for and during ber widowhood” with full power of disposition, “and at tbe termination of ber preceding particular estate tbe balance of my estate to be equally divided between my two children.” Tbe Court, speaking through Devin, J. (now Chief Justice), held tbe word “lend” used in tbe will was equivalent to “give” or “devise.” Even so, that tbe widow took only a life estate. It was pointed out that “while tbe gift of an estate to a person generally or indefinitely with power of disposition ordinarily carries a fee, this rule will not be allowed to prevail when tbe testator gives to tbe first taker by express terms, an estate for life only, though coupled with power of disposition.” In Blackstone’s Commentaries, Book 2, section 121, it is said: “If an estate be granted to a woman during ber widowhood, or to a man until be be promoted to a benefice; in these and similar cases, whenever the contingency happens, when tbe widow marries, or when tbe grantee obtains a benefice, the respective estates are absolutely determined and gone. Yet while they subsist, they are reckoned estates for life; because, tbe time for which they will endure being uncertain, they may by possibility last for life, if tbe contingencies upon which they are to determine, do not sooner happen.” In the instant case, the testator said, “I give and devise to my beloved wife, Clara J. Blackwood, all the real estate that I may be seized of at my death to her in fee simple so long as she remains my widow, and in tbe event of her marriage it is my will and desire that all of said property be equally divided between all my children then living . . .” The words, “so long as she remains my widow” limited the estate to one for *730 life or until sbe remarries. Tbe use of tbe words, “in fee simple,” in light of tbe limitation placed on tbe devise, cannot mean any more than an intention that during her widowhood sbe was to have tbe absolute and unconditional control and use of tbe property, free from any interference from others. But tbe language of tbe will, when considered in its entirety, is inconsistent with an intention to devise a fee simple estate. Alexander v. Alexander, supra. Hence, in light of our decisions and tbe other authorities cited herein, we bold that tbe devise gave Clara J. Blackwood, at most, a life estate. In view of tbe conclusion we have reached, we concur in tbe ruling of tbe court below in applying tbe doctrine of acceleration, and tbe judgment will be upheld. Bank v. Easterby, 236 N.C. 599, 73 S.E. 2d 541; Trust Co. v. Johnson, 236 N.C. 594, 73 S.E. 2d 468; Cheshire v. Drewry, 213 N.C. 450, 197 S.E. 1; Young v. Harris, 176 N.C. 631, 97 S.E. 609, 5 A.L.R. 477; University v. Borden, 132 N.C. 476, 44 S.E. 47. Cf. Neill v. Bach, 231 N.C. 391, 57 S.E. 2d 385. Affirmed.