Knox v. . Knox

SchencK, J. "We are called upon by tbe plaintiff’s appeal to determine whether tbe plaintiff Idella "W. Knox, as tbe sole legatee and executrix of tbe will of her late husband, R. C. Knox, is entitled to take a one-sixth interest in tbe net proceeds derived from tbe sale of real *148 property, which reverted to the executor of E. J. Knox upon the death of Mrs. Elizabeth A. Knox, widow of the said E. J. Knox, under the second*item of the will of E. J. Knox; and we are called upon by the defendants’ appeal to determine whether the plaintiff Idella W. Knox, as the sole legatee and executrix of the will of her late husband, R. 0. Knox, is entitled to take a one-sixth interest in the net proceeds of the other property, real and personal, which was not specifically devised by .the will of F. J. Knox and which passed by virtue of the residuary clause (the eighteenth item) thereof. We shall first address ourselves to the question raised by the plaintiff’s appeal: Is Idella W. Knox, as sole legatee and executrix of her late husband, R. C. Knox, entitled to a one-sixth interest in the net proceeds derived from the sale of real property which reverted to the executor of E. J. Knox under the second item of *his will upon the death of Elizabeth A. Knox, his widow? The answer to this question depends upon whether the interest in the proceeds of the sale of the lands, the use and benefit of the rents and profits of which are given to the testator’s wife, with the provision that they shall revert, upon the death of his wife, to the executor for disposition as thereafter provided, vested upon the death of the testator or upon the death of his wife. If the interest in the proceeds of such sale vested upon the death of the testator, one-sixth part of such interest vested in R. C. Knox, who was then living and was a brother of the testator, and his wife, the plaintiff, as his sole legatee and executrix, would be entitled to recover said one-sixth interest. If, on the other hand, the vesting of the interest in the proceeds of the sale of said lands was postponed till the death of the wife of E. J. Knox, the plaintiff would be entitled to recover nothing, since R. C. Knox, her husband and testator, was dead at that time. See agreed facts and items second and eighteenth of the will of F. J. Knox. It is well to observe that while the second item of the will of E. J. Knox gives to the wife of the testator only “the use and benefit of the rents and profits” of the real estate under discussion, that “it is regarded as settled that, within the limits of the rule against perpetuities, and in the absence of a clear intention to separate the income from the principal, an absolute devise of the income from land passes the land itself.” Benevolent Society v. Orrell, 195 N. C., 405. Therefore, Elizabeth A. Knox, widow of E. J. Knox, became a tenant for life in the land under discussion. It is well to further observe that since the second and eighteenth items of the will of E. J. Knox jointly provide for the disposition of the land under discussion by sale and division of the net proceeds therefrom, that “a direction to sell and divide does no more than to work an equitable *149 conversion of tbe real property as of the time of the death of the testator, and the gift, technically speaking, becomes a bequest instead of a devise, but the right of the beneficiary . . . vests alike in either case.” Witty v. Witty, 184 N. C., 375. The rule is that if there is in terms a gift or devise, and the time of enjoyment merely is postponed, the interest is a vested one; but if the time be annexed to the substance of the gift or devise, as a condition precedent, the interest is a contingent one, and the gift or devise vests only if and when the contingency happens at the time designated. Bowen v. Hackney, 136 N. C., 187. The very language itself of the second item of the will of F. J. Knox negatives any intention of making a disposition in fee by that item of the property of which the widow is made the life tenant, since it designates such property as “the property mentioned in this paragraph not disposed of in fee”; and also negatives any intention of making a disposition in fee in that item by the testator, since it provides that “upon the death of my said wife” the property of which she is made the life tenant “shall revert to my executor and be by him disposed of as hereinafter provided.” The eighteenth item of the will of F. J. Knox provides that his executor shall sell his property “not otherwise disposed of herein” and “divide the net proceeds, in equal proportions, share and share alike among my next of kin, representatives of my next of kin to inherit by succession per stirpes and not per capita.” We hold that the provisions of the second item of the will of F. J. Knox negativing any intention therein to dispose of the fee in the property under discussion and providing that it shall, upon the death of the life tenant, revert to the executor to be disposed of by him as thereafter provided, that is, as provided in the eighteenth item, postponed not only the right to enjoy but also the right to take the remainder, and created contingent interests in those who could answer the roll call at the time the provision for sale and division of net proceeds could be carried out, namely, “upon the death of my said wife.” To answer that roll call upon the death of the widow of F. J. Knox, one must be, according to the eighteenth item of his will, either next of kin of F. J. Knox or a representative of next of kin of F. J. Knox. If R. 0. Knox had been living at the time of this roll call he could have answered present as next of kin of F. J. Knox, as did J. Y. Knox, the only brother of F. J. Knox then surviving; or if R. C. Knox had had children surviving him they could have answered present as representatives of next of kin of F. J. Knox, as did John W. Knox and others, children of deceased brothers of F. J. Knox; but R. C. Knox was dead and had no lineal issue surviving him. The plaintiff, although she be the widow and the *150 sole legatee and executrix of R. C. Knox, could not answer as either next of kin or as representative of next of kin of F. J. Knox. Next of kin and representatives of next of kin exist by operation of law among those of the same blood, and these relationships cannot be created, destroyed, or transmitted by will. In a devise the words “next of kin” mean “nearest of kin,” and those nearest in blood are entitled to take to the exclusion of others who may be next of kin in the sense of the statute of distribution. Jones v. Oliver, 38 N. C., 369; Wallace v. Wallace, 181 N. C., 158. Also, in a devise the word “representative,” if it appears from the whole instrument that it was used in reference to other persons than executors and administrators, will be so interpreted that such other persons will take. Peterson v. Webb, 39 N. C., 56. R. C. Knox could not by will or otherwise make his widow, Idella W. Knox, next of kin to his brother, F'. J. Knox, or a representative of such next of kin. ¥e hold that the words “to divide the net proceeds, in equal proportions, share and share alike, among my next of kin, representatives of my next of kin to inherit by succession per slirpes and not per capita” in the eighteenth item of the will of F. J. Knox are qualifying words, and keep the disposition of the proceeds of the sale of the residuary property from being a gift simpliciter, importing a division among those who were heirs (or next of kin) of the testator at the time of his death, as in Witty v. Witty, supra, and are words, in the language of the opinion in that case, in pointing out exceptions to the general rule, “showing clearly that not only the enjoyment of the remainder, but also the right to take it was intended to be postponed until after the expiration of the preceding life estate:” That portion of the judgment from which plaintiff appealed is affirmed. We will now address ourselves to the question raised by the defendants’ appeal. Is Idella W. Knox, as sole legatee and executrix of her late husband, entitled to a one-sixth interest in the net proceeds derived from the sale of the property, real and personal, not specifically devised or bequeathed by the will of F. J. Knox, and not included in the life estate given to the wife of the testator, and which passed by virtue of the residuary clause (the eighteenth item) thereof? The defendants upon their appeal contend that the bequest under the residuary clause of the will of F. J. Knox is.a gift to a class, and is alternative or substitutional, and that if any interest therein vested in R. 0. Knox at the date of the death of the testator, such interest was divested by reason of his death on 9 February, 1929, less than two months after the testator’s death on 27 December, 1928. They contend that this is so for the reasons that (1) the property included in the *151 residuary clause could not be sold and the net proceeds therefrom ready for distribution by the date of the death of R. 0. Knox — that two months would not be a reasonable time in which to accomplish the sale and distribution, and that (2) the executor, in any event, under the law, ■had one year in which to sell the property and settle the estate, and that since an actual distribution of the proceeds arising from the sale of the property passed by virtue of the residuary clause of the will could not be made before the death of R. 0. Knox, any interest with which he might have been vested by virtue of the residuary clause of the will was divested by his death. We do not agree with this novel contention of the defendants, and they do not cite any precedent or authority therefor. While the time required and allowed in which to sell the property and make distribution may have postponed the right to enjoy the bequest, it did not postpone the right to take the bequest. The postponement of the right of enjoyment of an interest does not make the interest a contingent one, or make a vested interest an alternative or substitu-tional one. There must be a postponement not only of the right to enjoy but also of the right to take an interest in order to make it either a contingent interest or a substitutional or alternative interest. Bowen v. Hackney, supra. In this ease, we have no postponement of the right to take the interest. R. C. Knox was alive when F. J. Knox, the testator, died. He was a brother and next of kin of the testator. Upon the death of the testator eo mstanli one-sixth interest in the property passing by virtue of the residuary clause of the will to the next of kin of F. J. Knox vested in R. C. Knox. Since the one-sixth interest vested in R. 0. Knox, it passed by his will. Under the provisions of his will the plaintiff is his sole legatee and executrix. The direction that the land be sold and the proceeds divided made the gift a bequest instead of a devise, Witty v. Witty, supra, and as sole legatee the plaintiff is entitled to recover such interest. The portion of the judgment from which the defendants appealed is affirmed. There is no appeal from that portion of the judgment taxing the costs against Adrian 0. Knox, executor of F. J. Knox, although it appears from the record that said executor asked that the costs be not taxed against him. The purpose of this action being to obtain a construction of the will and protection for the executor, we think the costs are properly taxed. Affirmed..