American Yarn & Processing Co. v. Dewstoe

*124 Adams, J". It' was adjudged by the trial court that the interest or estate of each of the four children in the devised land was subject to be defeated and terminated as to each of them by his or her death without issue then living or born within ten lunar months thereafter. This adjudication is assailed by the plaintiff and Rose McDonald Dewstoe, widow and executrix of Martin E. Dewstoe, who contend that the death of the life tenant was fixed as the time when the devise over was to become effective, and that the devise to the lineal descendants is not a limitation upon the estates taken by them on the division, hut is a statement of the conditions upon which the lineal descendants of the testator ^were to be substituted for any child who -might be dead without issue at the time the division was made. As a general rule where a devise is made to one for life and after his death to the testator’s next of kin, the next of kin who are to take are the persons who answer that description at the death of the testator and not those who answer the description at the death of the first taker. Jenkins v. Lambeth, 172 N. C., 466; Goode v. Hearne, 180 N. C., 475; Witty v. Witty, 184 N. C., 375; Dupree v. Daughtridge, 188 N. C., 193. It is otherwise, however, where it appears from the terms of the will that some intervening time is indicated. Bank v. Murray, 175 N. C., 62. Ordinarily a devise to the survivors of a class will take effect at the testator’s death, but not if a particular estate is created and the remainder is given to those who survive the life tenant. Mercer v. Downs, 191 N. C., 203. Under the rule at common law a limitation contingent upon death without issue was void for remoteness because it referred to an indefinite failure of issue; and in order to give effect to the testator’s intention the courts began to look for some intermediate time, such as the termination of the life- estate, or some other designated period, and held that the phrase “dying without issue” was to be referred to this intermediate period. Hilliard v. Kearney, 45 N. C., 231. This principle was entirely changed by the act of 1827, which is now C. S., 1737: “Every contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children, or offspring, or descendant or other relative, shall he held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or child, or offspring or descendant, or other relative (as the case may he) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it: Provided, that the rule of construction contained in this section shall not extend to any deed or will made and executed before the fifteenth day of January, one thousand eight hundred and twenty-eight.” *125 Patterson v. McCormick, 177 N. C., 448, was decided in 1919; and in an exhaustive opinion practically all the cases relating to this statute were reviewed, distinguished, and classified. In that case the testator devised his plantation to his mother during her lifetime, and then provided: “After the death of my mother I will and bequeath the plantation above mentioned to my nephews, John D. and Clem Jowers, to he equally divided between them. In case they or .either of them die without issue, it is my will that the property herein bequeathed shall go to the heirs of Archibald and Gilbert Patterson and to the surviving brother John D. or Clem Jowers, as the case may be, to be equally divided between them.” The life tenant died in 1877 and John D. Jowers in 1904 without surviving issue, and the Court held that as the time of dying was to he referred to the death of John D. or Clem Jowers the title to the plantation vested, upon the death of John D. absolutely in the plaintiffs and in the defendants as purchasers from Clem. Another review of the decisions would now serve no good purpose. To those cited in Patterson v. McCormick may be added Love v. Love, 179 N. C., 115; Willis v. Trust Co., 183 N. C., 267; Vinson v. Gardner, 185 N. C., 183; Alexander v. Fleming, 190 N. C., 815. In some of the cases the devise was substantially the same as that now under consideration and these decisions are controlling here. On this point we find no error. It was also adjudged that upon the death.of Martin E. Dewstoe his undivided one-fourth interest vested as an indefeasible fee-simple title in the surviving brother and sisters. We think this conclusion also is correct. The manifest purpose was to provide first for the children— the grandchildren to take in succession and not as tenants in common. James v. Hooker, 172 N. C., 780; Bowden v. Lynch, 173 N. C., 203; Robertson v. Andrews, 175 N. C., 492. It was established by the verdict that the two lots conveyed to the plaintiff by the testator’s widow and children are less in value and acreage than one-fourth the value and acreage of the 83-acre tract, and that one-fourth in value of the entire tract can be allotted in severalty to the three surviving children so as to include the lots conveyed to the plaintiff without prejudice to the other interests. Accordingly, it was decreed that the share of Martin E. Dew-stoe be thus allotted, and that the cause be referred to the clerk to appoint commissioners to make such allotment by metes and bounds, excluding from consideration all improvements made on the property by the plaintiff or its predecessor, and embracing in the allotment the two lots now claimed by the plaintiff. As we understand from the briefs and the oral argument the defendants, except Eose McDonald Dewstoe, admit there is no error in the judgment, and as the order in reference to this allotment is not one of the grounds on which she appeals, we find no *126 exception to tbis part of the judgment. Bose McDonald Dewstoe assigns • for error the court’s failure to determine and adjudge the extent of her dower interest in the defeasible estate of her deceased husband. The judgment merely declares that she shall not claim dower in the lots conveyed to the plaintiff and that no other part of the judgment shall prejudice or affect her right to any dower she may have as surviving widow. In her brief she says that she requested the trial court to adjudge that she is entitled to dower in one-fourth in value of the entire tract except the lots conveyed to the plaintiff; but such request is not disclosed by the record. She prayed a separate appeal, but she has set out no specific assignment of error in the judgment. Bose McDonald Dewstoe is of course entitled to dower in the defeasible estate of her deceased husband (Alexander v. Fleming, 190 N. C., 815), but it was suggested on the argument that as the judge did, not undertake to determine the present scope and extent of her right to dower, the question should be left open until in a formal proceeding it can be fully considered. In the present state of the record we concur in this suggestion. We find no reversible error. No error.