Fulton v. . Waddell

Brogden, J. Tbe question is tbis: Under a devise of land for life and at tbe death of tbe life tenant, to be “equally divided between all my children then living or their heirs ” does tbe sole survivor of tbe children of testator take tbe entire property, or do tbe children and descendants of deceased brothers and sisters of such survivor share in tbe property? Tbe true answer to tbe question, gathered from decisions in point, may be stated in three propositions, to wit: (1) Tbe remainder is contingent. Starnes v. Hill, 112 N. C., 1; Whitesides v. Cooper, 115 N. C., 570; Bowen v. Hackney, 136 N. C., 187;. James v. Hooker, 172 N. C., 780; Mercer v. Downs, ante, 203. (2) Tbe remainder is limited to a class, and tbe class is to be ascertained at tbe termination of tbe life estate. Bowen v. Hackney, 136 N. C., 187; Witty v. Witty, 184 N. C., 375. (3) Tbe person or persons answering tbe description when tbe life estate terminates, take tbe whole property. In other words, when tbe contingency upon which tbe estate is to vest happens, tbe law immediately calls tbe roll of tbe class. Those who can answer, take. Gill v. Weaver, 21 N. C., 41; Sanderlin v. Deford, 47 N. C., 74; Knight v. Knight, 56 N. C., 167; Hawkins v. Everett, 58 N. C., 42; Grissom v. Parish, 62 N. C., 330; Britton v. Miller, 63 N. C., 270; Wise v. Leonhardt, 128 N. C., 289; Cooley v. Lee, 170 N. C., 18; Witty v. Witty, 184 N. C., 375; Phinizy v. Foster, 90th Ala., 262. Tbe prevailing rule, governing in such cases, is thus stated in Demill v. Reid, 71 Md., 187: “It seems to us to be clear law, as well as good sense, tbat in a case like tbis where there is an ultimate limitation upon a contingency to a class of persons plainly described, and there are persons answering tbe description in esse when tbe contingency happens, they alone can take.” Applying these principles to tbe facts in issue, it appears tbat John D. Waddell, Sr., left him surviving five children. He devised tbe land to Ann and Martha “during their natural life, and after their death to all my children then living.” It is obvious tbat tbe designated class was *690 “all my children living” at the death of the life tenant, and it is admitted that the defendant, John D. Waddell, Jr., was the only living child of testator when the life estate terminated. Therefore, as he alone answered the description or roll-call, the title to the property vested in him. The plaintiffs, however, contend that the testator by the use of the words “or their heirs” intended to devise the property to “my children then living” and the children of those who predeceased the life tenants. We are of the opinion that such a construction of the devise cannot be maintained either by law or logic. It is apparent that the testator contemplated an equal division among his own children, and that they were the immediate objects of his bounty, because he specifically provides that the land shall be sold and the proceeds "equally divided between all my children then livingIf the construction suggested by the plaintiffs should be allowed to prevail, then the estate must be divided per capita between the defendant and the plaintiffs for the reason that the plaintiffs would take under the will as purchasers and not by descent. Hence, the inevitable result would be that the defendant would receive one-fourteenth of the estate, and certainly not in excess of one-eleventh. Such a construction would wrench the plain meaning of the devise and violate the manifest intention of the testator. It follows that the deeds executed by the parties have no bearing upon the merits of the controversy. Upon the record, we hold that it was the intention of the testator that the remainder should vest in all or any of his children that were living at the death of the life tenants, and in the event all of his own children were dead at that time, that their heirs should take the property under the will. Therefore, the judgment, as written, must stand. Affirmed.