Bell v. . Gillam

Adams, J. Tbe plaintiff is tbe only child of Holley M. Bell. She brought suit asking that she be judicially declared tbe sole owner in fee of certain real estate devised by ber grandmother, Celia H. Etheridge, to tbe children of Holley M. Bell. Tbe material parts of tbe devise are as follows: (a) “To tbe children of my son Holley M. Bell, I give, subject to tbe reservation hereinafter named, tbe following part of tbe Eden House Farm” . . . (b) “Tbe children of said Holley M. Bell are to bold these lands during their life, subject to a reservation hereinafter named, and on their death shall go to their children and from them to their lawful heirs forever and ever and ever.” . . . (c) “Tbe said children of Holley M. Bell shall bold these lands as shall their children and heirs, subject to tbe right of Holley M. Bell, to use all of the lands cultivatable for bis personal use so long as be shall live . . . but in tbe event tbe title to tbe use shall in^ny way pass out of tbe bands of Holley M. Bell, immediately tbe fee shall vest in bis children.” In contemplation of law what is tbe effect of tbis language? In construing wills tbe courts endeavor to ascertain tbe intention of the testator as expressed by tbe words be has used. If a devise is set forth in clear and unambiguous language there is no occasion for construction; but if doubt exists resort may be bad to tbe usual canons of interpretation, by wbicb tbe meaning of words, phrases, clauses, and even of apparent repugnancies may be explained by reference to other parts of tbe will. Williams v. Best, 195 N. C., 324; Scales v. Barringer, 192 N. C., 94. A devise of land is held and construed to be in fee unless it appears from tbe will that the testator intended to convey an estate of less dignity. C. S., 4162. Tbe first of tbe foregoing clauses (a), standing *414 alone, is a devise in fee, subject to the reservation; the second (b), a devise to the children of Holley M. Bell for' life, with remainder to their children, subject to the reservation; and the third (c), a contingent devise of the fee to the children. The quoted provisions taken together are at least susceptible of the interpretation that the devise in question gives a life estate to the children of Holley M. Bell, subject to his right to use all the land capable of cultivation so long as he shall live, on condition that the children’s life estate shall be converted into a vested fee simple the moment the title to the use shall pass out of the hands of Holley M. Bell. Has the title to the use passed from his hands? The answer may be found in a judgment of the Superior Court of' Bertie County rendered at the November Term of 1929, in which it was adjudged that the plaintiff is the owner in fee of the land in controversy, discharged of Holley M. Bell’s right to use it as provided in the will. The judgment contains a recital that all parties in interest were before the court, and presumably all interests were protected whether vested or contingent. The entire record of the case in which this judgment was rendered is not before us; but the reasonable conclusion is that by virtue of the condition heretofore named the “title to the use” passed from Holley M. Bell and the title in fee to the land immediately vested in his children. The devise is to a class — “the children of my son Holley M. Bell.” The plaintiff, his only child, represented the class. A remainder to a class of children vests in right, but not in amount or quantity, in such of the objects of the bounty as are in esse and answer the description at any time before the determination of the particular estate. Lumber Co. v. Herrington, 183 N. C., 85. But when the particular estate comes to an end all of the class who have an interest are immediately determined. Trust Co. v. Stevenson, 196 N. C., 29; Jarman v. Day, 179 N. C., 318; Cooley v. Lee, 170 N. C., 18. It will be seen that the interest of the plaintiff is declared by the judgment under the express terms of the will, without the necessity of awaiting the death of Holley M. Bell, because his right to the use of the land was extinguished and the fee vested immediately upon the happening of the contingency. The case of Fulton v. Waddell, 191 N. C., 688, on which the defendants rely, is not controlling, as pointed out in the concurring opinion of Brogden, J., in Trust Company v. Stevenson, supra. Judgment Affirmed.