Burleyson v. . Whitley

Smith, C. J., (after stating the case). The instrument to be interpreted has been drawn by an unskillful hand, but it discloses throughout a predominant purpose to make ample provision for the comfort and convenience of the mother of the testatrix during her remaining life, and this even, if necessary, to the extent of consuming the entire estate. To assure care and attention to her wants, and the continued residence of the defendant upon another tract and an appropriation of rents for so much as he may be able to cultivate of it to the mother’s support, she devises at her mother’s •death, the Bird tract to the defendant in fee simple. The •defendant did remain on the land until the death of Elizabeth, which occurred just before that of the testatrix, thus •dispensing with the conditional requirements of the devise, ■or rather, rendering their performance impossible. Now under these circumstances, does the devise to the defendant fail altogether, or is it relieved of the super-imposed *298 burdens and rendered absolute? This is the question to be solved. The inquiry is not embarrassed with the ruling in cases; where a preceding limited estate to one, lapses by the donee’s death before that of the testator and lets in the remainder at once as a present estate, as is held in Billingsley v. Harriss, 17 Ala., 214. Here the beneficial purposes are united with the devise itself, the one being the consideration and inducement for the other. In Nunnery v. Carter, 5 Jones Eq., 370, the bequest was to a son, “provided he take care of his mother; if not, to be whose that does take care of her.” She died in the life-time of the testator, her husband. It was decided that “ the legacy vested and was relieved of the burden imposed by the event, for the reason that the condition was not the sole motive of the bequest.” Battle, J., in the opinion, quotes with approval from 2 Williams Executors, 786, in which the latter says, “ with respect to conditions precedent which are impossible, a different rule is applicable to bequests of personal property from that which is prevalent respecting devises of realty. By the common law of England, if a condition precedent is impossible, as to drink up all the water in the sea, the devise will be void,” adding that, “ when a condition precedent to the vesting of a legacy is impossible, the bequest is single, that is discharged of the condition,” &c. The Court however, annex a further limitation, that the legacy will be “void only when the impossible condition is the sole motive of the bequest.” This ruling was affirmed soon after in Lefler v. Rowland, Phil. Eq., 143, where the testator left the greater part of his estate to his son, coupled with the qualification that he “ should live with me my life-time and in case he will do so and help me pay all my just debts and demands against me and treat me and his mother with humanity and kindness,” &c. *299 The son died before the father, and it was declared that as “ it appears that the sole motive with the testator for leaving the greater part of his estate to his son John, to the exclusion of all his other children, was that John should live with him and help him pay his debts as well as treat his parents with ‘ humanity and kindness,’ the intervention of' the act of God rendering the performance of ‘ the condition upon which he was to have the property,’ ” impossible, no interest vested which could be transmitted to his issue under the statute. Rev. Code, ch., 119, sec. 28. Our case is not affected by the rulings in Woods v. Woods, Busb., 290, where land was devised with a charge of $300 to-be paid to one who died in the testator’s life-time, and in Whitehead v. Thompson, 79 N. C., 450, where land devisecL was charged with similar payment to be made to others who died before the testator, since in these cases the legacies, though charged, are distinct, and had lapsed so as to divest, the estate of the incumbrances. We refer to some other adjudications having an indirect bearing upon the case: McNeely v. McNeely, 82 N. C., 183; Willons v. Jordan, 83 N. C., 371. These cases, with our own reasoning, conduct us to the-conclusion reached by the Court, that as the devise was entirely for the benefit of the mother, and intended to be a remuneration only for what the devisee might do in her behalf, the devise falls with the object for which it was made- There is no error. Judgment affirmed. No error. Affirmed.