Christopher v. . Wilson

Hoke, C. J. The validity of the title offered depends largely on the correct interpretation of clause 2 of the will' of Elizabeth Huneycutt, former owner, in terms as follows: “I give and devise to my beloved grandchildren (the children of my deceased daughter, Mary A. C. Eigler), viz., Sarah Elizabeth Eigler, Minnie Louisa Eigler, and Charles Edward Eigler, the house and lot fronting 45 feet on ‘O’ Street, adjoining the lot of John T. Sckenck and running back to the line of James F. Moody; and should either of my aforesaid grandchildren die without bodily heirs or before the age of twenty-one years, then its or their interest shall revert to the surviving ones or their bodily heirs; but should the aforesaid grandchildren all die without bodily heirs, then this property shall revert and belong equally to my children and their lawful heirs.” Considering the clause in connection with the pertinent and explanatory facts, it appears that the devise contained therein is subject to two sets of contingencies, the first affecting the estate and interest of the primary takers, the grandchildren • therein named inter sese, and the other, the primary estate as between these grandchildren and testator’s *760 children, the ultimate takers of the estate on contingency. In regard to the contingencies first specified carrying the estate of either grandchild to the others, if he should die without bodily heirs or before the age of 21 years, it has been held with us, as the general rule, and in cases where the question was fully considered, that the word “or” shall be construed to read “and” and the estate would be relieved of the defeasance on the happening of either contingency. Pilley v. Sullivan, 182 N. C., 492; Williams v. Hicks, 182 N. C., p. 112; Bell v. Keesler, 175 N. C., p. 525; Ham v. Ham, 168 N. C., p. 486. This being the approved principle and the facts showing that all of the grandchildren have arrived at the age of 21, the first contingencies, those affecting the estate of the primary takers inter sese are thereby removed and the estate vests in these grandchildren and their heirs — but subject to the second contingency, that if all of these grandchildren die without bodily heirs then the property shall revert to the testatrix’s children, etc., “and their lawful heirs.” Under such interpretation the estate held by the grandchildren, the first takers, constitutes a defeasible fee and under numerous decisions dealing with the question on the happening of the contingency, the death of all them without bodily heirs, the estate would pass to the ultimate takers, not as a limitation of the present estate, but by way of substitution and under which the ultimate takers hold directly from the devisor. And from this it follows, in our opinion, that plaintiffs are not now in a position to make a good title to the property for, on the facts presented, until the death of these first takers, or at leapt one of them leaving issue, it cannot be known or ascertained who are the owners under the ultimate devise, or whose deed would be sufficient to assure the title. Hutchinson v. Lucas, 181 N. C., p. 53; O'Neal v. Borders, 170 N. C., p. 483; Burden v. Lipsitz, 166 N. C., p. 523; Sessoms v. Sessoms, 144 N. C., p. 121, 125; Whitfield v. Garris, 134 N. C., p. 24. The case of Baugham v. Trust Co., 181 N. C., p. 406, is apparently in conflict with this position, but the cases cited in support of that decision are as to estates in remainder, which operate as limitations on the first estate and involving chiefly, the question of when the, ulterior limitations would vest and do not seem applicable to a devise such as this, where one line or stock of owners is substituted for another, where the claimants, the ultimate takers are not known and cannot be presently ascertained, and when, as a rule, they are required to fill the description at the time their estate vests. Recognizing that the true construction of the devise would affect the estate of the first takers with a contingency that still prevails, the plaintiffs contend that the title is fully assured by the deeds of the two surviving children of the devisor and the lawful heirs of such as have *761 died, under the principle approved in the case of Hobgood v. Hobgood, 169 N. C., p. 485. In the Hobgood case the ultimate takers were four nepbews living ánd designated by name and it was beld tbat they having conveyed all their interest and title to the primary holders of the defeasible fee, such holders were in a position to give a good title, the deed of the ultimate owners being effective to conclude their heirs whoever they might be. And the principle has been affirmed and approved in Malloy v. Acheson, 179 N. C., p. 90; Williams v. Biggs, 176 N. C., p. 48; Kornegay v. Miller, 137 N. C., p. 659, and other cases. But here the ultimate takers are the children and the heirs of such as have died since the death of the devisor, these heirs are not known and cannot be now ascertained for they must fill the description of the devise and show themselves heirs of the children of testatrix at the time the estate would devolve upon them, and this cannot be shown until the termination of the preceding estate. Speaking to the question in Hobgood’s case, supra, the Court said: “In Kornegay’s case, as in this, tbe ultimate devisees were ascertained and designated by name, and tbey having tbe contingent estate, it was beld tbat tbey could convey it, and tbeir descendants or heirs, having to claim through them, were concluded by tbe deed of tbe ancestor. Kornegay v. Miller, supra; Bodenhamer v. Welsh, 89 N. C., p. 78. But in Burden’s case tbe ultimate takers, designated in tbe devise as The heirs of tbe devisor,’ were not known nor could tbey be ascertained till'the preceding estate bad terminated.” True it is stated in the case argued that the two surviving children bad made a deed conveying all their interest to the primary takers, the holders of the defeasible fee, but these are only two of the children, the others having died leaving lineal heirs — and these heirs also have made a deed of their interest, but while they are heirs now of the deceased children of the devisor, they may not be such when the preceding estate falls in — and the case, therefore, comes directly within the principle of Hutchinson v. Lucas, supra; Borden v. Lipsitz, supra, and that line of decisions and under which plaintiffs are at present prevented from conveying a valid title. In Barnitz’s Lessee v. Casey, 11 U. S. (7 Cranch’s), pp. 456, 469, Associate Justice Story discussing tbe transmissibility of an executory devise not dissimilar to this and bow and when tbe ultimate takers may be ascertained, said: “In tbe next place it will be necessary to consider what is tbe nature of an executory devise as to its transmissibility to heirs, where tbe devisee dies before tbe happening of tbe contingency. And it seems very clear tbat at common law, contingent remainders and executory devises are transmissible to tbe heirs of tbe party *762 to whom they are limited if he chance to die before the contingency happens. Pollexfen 54. 1 Rep., 99. Gas. Tempt. Talb., 117. In such case, however, it does not vest absolutely in the first heir so as upon his death to carry it to his heir at law, who is not heir at law of the first devisee, but it devolves from heir to heir, and vests absolutely in him who only can make himself heir to the first devisee at the time when the contingency happens, and the executory devise falls into possession.” For the reasons stated, we are of opinion that the judgment of the lower court should be reversed and it is so ordered. Reversed.