Patterson v. . Brandon

Denny, J. The appellant contends that the devise of the remainder in the Ingle property to Addie Shoe, was subject to the proviso : “If she looks after and takes proper care of my beloved wife, Mollie Ingle,” and that this proviso is a condition precedent, which condition was never performed and therefore title never vested in her. If this contention is correct, then the deed from Addie Shoe and her husband, J. W. Shoe, to Mollie Ingle did not convey the remainder in said property and Mollie Ingle’s deed to Dr. and Mrs. Brooks conveyed nothing more than her life estate; and the deed from Dr. and Mrs. Brooks to the plaintiffs would likewise be so limited. *91 We do not so bold. Tbe law favors a vesting of estates and we think Addie Shoe took a vested remainder in the land devised under the terms of the will of W. P. Ingle. And, since the will contains no limitation over upon the failure of the devisee to take care of the testator’s wife, we do not think the language used in the above proviso sufficient under our decisions, to work a forfeiture of the estate upon the failure of the devisee to take care of the wife. Oxford Orphanage v. Kittrell, 223 N. C., 427, 27 S. E. (2d), 133; Church v. Refining Co., 200 N. C., 469, 157 S. E., 438; Marsh v. Marsh, 200 N. C., 746, 158 S. E., 400; Cook v. Sink, 190 N. C., 620, 130 S. E., 714; Hall v. Quinn, 190 N. C., 326, 130 S. E., 18; Askew v. Dildy, 188 N. C., 147, 124 S. E., 124; Allen v. Allen, 121 N. C., 328, 28 S. E., 513; Misenheimer v. Sifford, 94 N. C., 592; McNeely v. McNeely, 82 N. C., 183. In McNeely v. McNeely, supra, where the testator devised all his property to his wife for life and then devised the remainder as follows: “I give all the lands that I have to my son Lilly ... at the death of his mother, by him seeing to her.” Billy predeceased his mother, but it was held that he took a vested remainder in the property and that the words, “by him seeing to her,” did not operate as a condition to terminate or impair his estate. A similar conclusion was reached in the case of Misenheimer v. Sifford, supra, where the testator devised certain property to his son, “Provided he maintain his mother during life comfortably, and shall give her houseroom and firewood, and all necessaries of life, during her life or widowhood.” Likewise, in the case of Allen v. Allen, supra, the will provided: “If my son E. J. Allen will agree to live at my residence that I have left my wife during her life, at her death, if my son E. J. Allen shall think proper to pay $2,000.00 for all the land and residence that I left to my wife during her life, he shall have the privilege of doing so, and he shall have a fee simple right and title to it to him and his heirs forever.” This Court held the devisee, E. J. Allen, took a vested remainder in fee, charged with $2,000.00. We need not determine whether the above proviso was sufficient to create more than a moral obligation on the part of the devisee to render aid and assistance to the widow of W. P. Ingle. We do hold, however, that it was insufficient, if broken, to divest Addie Shoe of the interest devised to her under the will of her brother, W. P. Ingle. Therefore, the deed from Addie Shoe and her husband, did convey the remainder to Mollie Ingle, the holder of the life estate, thereby giving her a good and indefeasible title to the property. Consequently, the plaintiffs, now holding the property through mesne conveyances from Mollie Ingle, have a good and indefeasible title in fee simple to said property. The judgment of the court below is Affirmed.