Sain v. Baker.

*257 Glare, J. Tbe first exception (that the Court refused to permit a witness to be asked on cross-examination whether .). W. Leonhardt died intestate or left a will) became immaterial and need not be considered, for the defendants after-wards introduced the said will. The defendants could not have introduced the will on cross-examination in evidence. Olive v. Olive, 95 N. C., 485. The second exception was abandoned. Daniel Leonhardt died in 1860, and by his will, bearing date the same year, he devised the first three tracts mentioned in the complaint to his son, J. Wesley Leonhardt. It was admitted in open Court, and also in the pleadings, that Daniel Leonhardt at the time of his death had title- to the same, and that the plaintiffs are the sole heirs of Daniel Leonhardt since the death of J. Wesley Leonhardt, who died leaving no children. It was also admitted that the title to the fourth and fifth tracts was in J. Wesley Leonhardt at his death, and that both plaintiffs and defendants claim title under him. By the third item of the will of Daniel Leonhardt, he devised the first three tracts to his son Wesley Leonhardt aforesaid. But by the seventh item thereof he provides: “My will and desire is that all the lands and negro boy Samuel that I have willed to my son Wesley, provided he should die before his present wife and without any lawful heir or heirs, in that case the lands and said negro boy I direct to be sold and the proceeds thereof to be equally divided between my three daughters” (naming them). The plaintiffs are one of the three sisters and the children of the other two-. It was uncontradicted evidence that J. Wesley Leonhardt died before his wife (who was the only wife he ever had), and that he died without having had any issue. The entire will must be construed together. Item 7 thereof, taken in connection with item 3, created a *258 contingent- executory devise, after a fee conditional, for the benefit of plaintiffs, should Wesley Leonhardt die without leaving heir or heirs. Kornegay v. Morris, 122 N. C., 199; Baird v. Winstead, 123 N. C., 181; Watson v. Smith, 110 N. C., 6; Fortescue v. Satterthwaite, 23 N. C., 566. From the context it is clear that the words “without • any lawful heir or heirs” in Item 7 are used in the sense of dying “without issue or children,” otherwise the limitation over to Wesley’s sisters, Daniel Leonhardt’s daughters, would have been in vain. Rollins v. Keel, 115 N. C., 68. This limitation over is not void for remoteness, and toot effect at the death of the devisee Wesley Leonhardt without issue, by virtue of the act of 1827, now The Code, section 1327. Buchanan v. Buchanan, 99 N. C., 308. The defendants strenuously contend that the limitation over was void unless Wesley had died without issue during the life of the testator — relying upon cases cited by counsel, especially Hilliard v. Kearney, 45 N. C., 221; Burton v. Conigland, 82 N. C., 99. This would have been correct at common law and down to the enactment of the statute of 1827, just cited, which by its terms applies only to wills executed since 15th January, 1828. Weeks v. Weeks, 40 N. C., 111. Prior to the statute of 1827, when there was a devise like this to one in fee, with a limitation over upon his death without issue, or without heirs, the courts held that this meant a dying without issue, or without heirs, during the lifetime of the testator. This was a strained construction, for. the will speaks as of the time of the testator’s death, and naturally would contemplate the death of the devisee, without issue, at a subsequent date. The reason given, however, was that if it was held to mean a dying after the testator’s death, without heirs, or without issue, that would be by common law rules any future failure of heirs, and the devise would fail for remoteness. Hence it was held that if a devisee in' such *259 case was alive at the testator’s death, the estate became indefeasible and the limitation over was void. The statute put what would seem to us a common sense construction on these words (which, if it had been held, would have avoided either of above alternatives) by prescribing that these words of limitation should be held to mean a dying without issue, or without heirs, "living at the time of devisee’s death” (or within ten months thereafter). Code, section 1327. In Hilliard v. Kearney, 45 N. C., 222, the will construed was executed in 1775; in Gibson v. Gibson, 49 N. C., 425, the will bore date 1823; in Hollowell v. Kornegay, 29 N. C., 261, the will was of date 1786, and in Brown v. Brown, 25 N. C., 134, the testator died in 1801. In this last case, while applying the common law rule, the Court refers to the statute of 1827 and recognizes that wills executed subsequent thereto must be construed by its provisions. In both Burton v. Conigland, 82 N. C., 100, and Murchison v. Whitted, 87 N. C., 465, the will was dated since 1827, and.the opinion is evidently inadvertent in laying down a dictum recognizing the old line of decisions, but what was said on that head was obiter and not necessary to the determination of either case. Davis v. Parker, 69 N. C., 271, ignored the statute of 1827, and was overruled in Buchanan v. Buchanan, supra, in which the purpose of the statute is discussed and clearly enunciated, and as it is also- in Kornegay v. Morris, supra, and any other construction would destroy the statute and defeat its object. Therefore, as to the first three tracts named in the complaint, by the terms of Daniel Leonhardt’s will they passed to the plaintiffs upon the death of J. Wesley Leonhardt in 1898 without issue. In the second clause of the will of J. Wesley Leonhardt, he attempted to give the three tracts above referred to, which had been devised to him by his father, to his wife for life. *260 This was beyond bis power for tbe reasons already given; but as the wife died shortly after her husband and there is no limitation over said three tracts, pass, in any view of the case, to his heirs at law. In the third clause of said will, J. Wesley Leonhardt gave a tract of 133 acres to his wife for life, with remainder at her death to the defendant Dora S. Baker, but there is no devise of the testator’s two other tracts, which are numbered fourth and fifth in the complaint. In the fourth clause of his will he gives all his “personal effects of every kind and description” to his wife for life, and at her death “whatever is remaining of my personal property or effects to Dora S. Baker,, wife of Michael Baker, her heirs and assigns forever.” It was seriously argued to us that the rule that a testator is presumed not to die intestate as to any property, carried all five tracts of land named in the complaint to the defendant Dora S. Baker. But by the very terms of the fourth clause under which she claims, Dora S. Baker was residuary legatee of the personal estate only. By the second and third clauses only was the realty devised. Eor reasons above given, the first three tracts named in the complaint (and referred to in the second clause of Wesley’s will) passed to plaintiffs. The fourth and fifth tracts named in the complaint are not devised ; as to them, Wesley having died intestate, they likewise passed to plaintiffs, and his Honor correctly instructed the jury if they believed the evidence to answer the first issue “Yes.” There was no exception upon the second issue as to the damages for detention. No error.