Whitfield v. . Douglas

Hoke, J. “Subject to the position that the intent and purpose of the. testator as expressed in his will shall always prevail, except when the-same is in violation of law, it is a recognized rule with us, when the-will is sufficiently ambiguous to permit of construction, the Courts should lean to that interpretation which favors the early vesting of estates, and that the first taker of an estate by will is ordinarily to be considered as the primary object of the testator’s bounty.” Citizens Bank v. Murray, at the present term; Bank v. Johnston, 168 N. C., 304; Dunn v. Hines, 164 N. C., 113. Our recent decisions further hold that when an estate by will is left' to one with a limitation over on the death of the first taker without issue, these words will be given their natural meaning and effect the-estate with the contingency until “such death without issue,”, unless it appears from the terms of the will that an earlier period was intended, when the estate of the first taker should become absolute. Bizzell v. B. & L. Assn., 173 N. C., 158; Rees v. Williams, 165 N. C., 201; S. c., 164 N. C., 128; Smith v. Lumber Co., 155 N. C., 389; Elkins v. Seigler, 154 N. C., 374; Perrett v. Bird, 152 N. C., 220; Harrell v. Hagan, 147 N. C., 111; Whitfield v. Gorris, 134 N. C., 24; Williams v. Lewis, 100 N. C., 142; Buchanan v. Buchanan, 99 N. C., 308. Considering the present devise in view of these principles, we are off opinion that, by the terms of the will, the testatrix intended an earlier period for estate of the first takers to become absolute, to wit, at the period of division had on the death of her husband and the coming of age of her youngest child. She begins the limitations in question with the very significant statement that “No part of my property is to be- disposed of until my youngest child shall arrive at the age of 21 and until after the death of my husband and executor.” Then after directing that the property shall bei kept together under the management and. control of her husband and until the coming of age of her youngest child, the will provides for a division among her children, share and share alike; and if any of them die without issue, then their share shall be equally divided between my other children then living, etc. It thus. *49 appears that tbe testatrix desired that tbe share of a child dying without issue shall be “divided”; and when construed in connection with the former portion of the will, that none of the property be disposed of till the death of her husband and the coming of age of the youngest child, and in reference to the position that the law favors the early vesting of estates, we think it clear that it was the mind and purpose of the testatrix that the devise should become absolute at the time of division had; and the clause that “the share of a child dying without issue shall be divided among my issue then living,” the expression “then living” refers to the period of division, and not otherwise. Several recent and well-considered decisions of the Court are in support of this interpretation. Bank v. Johnston, supra; Dunn v. Hines, supra; Price v. Johnson, 90 N. C., 593, and many others could be cited. The case of Williams v. Lewis, supra, cited for appellants, is not in necessary conflict with this position. In that case it was held that there being nothing in the terms of the will to indicate that an earlier period was intended, except the mere fact that a partition was provided for, the limitation over on the death of the first taker should be construed according to the natural import of the words used and effect the estate with the contingency until the time designated. A similar decision, and for a like reason, was rendered by this Court in the recent case of Springs v. Hopkins, 111 N. C., 486. In the case before us, however, there being additional terms in the will indicating that the estate should become absolute at the time of division had, we concur in his Honor’s view that the title offered is a good one and has been correctly adjudged that defendants must comply with their contract. Affirmed.