Kirkman v. . Smith

Walker, J., after stating the case: It is clear that by the deed, which has been tendered, an absolute fee simple title would not pass to the purchaser of the land, if the deed should be accepted. Tbe clause of the will in question is the same as if it bad read, “To Margaret Kirkman for life, and then to Guy Kirkman and Marvin Kirkman and their heirs, and if they should die without any bodily heirs, then the land to go over to the Flow heirs.” This follows from the provision of our statute (Revisal, see. 3138), that every devise of real estate shall be held and construed to be a devise in fee simple unless otherwise plainly expressed or intended by the will, or some part thereof, that the testator’s purpose was to pass an estate of less dignity. Tbe limitation in remainder to the two sons was of an estate in fee, but subject to be terminated or defeated by the happening of the event, viz., the death of the sons without bodily heirs, upon which the estate was limited. Tbe estate, therefore, was not absolute, but defeasible. If the event takes place, it will go over to the ulterior devisees. Whitfield v. Garris, 134 N. C., 27. It is a shifting use, operating by way of an executory devise, as it would be a conditional limitation if the clause were in a deed. Chief Justice Shepherd pointed out with great clearness and discrimination, in Starnes v. Hill, 112 N. C., 1, and afterwards in Whiteside v. Cooper, 115 N. C., 570, the difference between vested and contingent remainders. Quoting from Gray *606 on Perpetuities, be said: “The true test in limitations of tbis character is, that if the conditional element is incorporated into the description of the gift to the remainderman (as it is in the case under consideration), then the remainder is contingent; but if after the words giving a vested interest a clause is added divesting it, the remainder is vested. Thus, on a devise to A. for life, remainder to his children, but if any child die in the lifetime of A., his share to go to those who survive, the share of each child is said to be vested, subject to be divested by its death. But on a devise (as in the present case) to A. for life, remainder to such of his children as survive him, the remainder is contingent.” But Guy 0. Kirkman cannot convey an'indefeasible title, as he may yet die without bodily heirs. It is provided by Revisal, sec. 1581: “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 issue of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person shall die, not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case maybe) living at the time of his death, or born to him within ten limar 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.” This will was made since 1828. If the contingency of Guy’s dying without bodily heirs should take place, the estate would go over to the other devisees named in the will, namely, the Flow heirs, and the estate of the purchaser, if he accepted the deed, or was compelled to do so, would be defeated. It therefore results that the deed would not pass to him the estate for which he contracted, and which the plaintiffs agreed to convey. We do not think that Rule 4 of the Canons of Descent has any application. That rule (Revisal, sec. 1556) provides: “On failure of lineal descendants, and where the inheritance hase been transmitted by descent from an ancestor, or has been derived by gift, devise, or settlement from an ancestor, to 'whom the person thus advanced would be in the event of such ancestor’s death have been the heir or one of the heirs, the inheritance shall descend to the next collateral relations, capable of inheriting, of the person last seized, who were of the blood of such ancestor, subj’ecti to the two preceding rules.” It is evident that the rule is confined to cases where there is no other disposition of the land by the will which would interfere with the prescribed course of descent. In this case the “Flow heirs” take, not by descent from the testator, or Guy 0. Flow, but under the will as purchasers, because it is declared therein that in default of the sons having-bodily heirs at their death the estate shall go to them. He who thus takes under the will, and not by descent under the law, is what the civil law denominates hwres †actus, or an heir made by will. We could not construe Rule 4 as confining the limitation over at the death of the sons *607 without “bodily heirs” to those of the Flow heirs, who also will be heirs of Guy Kirkman at his death, ,as the testator has willed otherwise by appointing other devisees to take when the event, now contingent, shall happen. If there had been no such limitation to other persons in remainder, the question ably argued by learned counsel might have arisen. His Honor, Judge Cline, was therefore correct in holding that the plaintiffs could not convey “an absolute fee simple estate” which they sold to the defendant and contracted that they would transfer to him. Affirmed.