Dupree v. . Daughtridge

Adams, J. At common law a limitation contingent upon the death of a grantee or devisee without issue was held to embrace an indefinite failure of issue and for this reason to be void. Brown v. Brown, 25 N. C., 134; Buchanan v. Buchanan, 99 N. C., 308, 311. In Patterson v. McCormick, 177 N. C., 448, it is said: “In the application of this principle and in order to avoid as far as possible defeating the intent of the grantor or testator, if there was in any deed or will an intermediate period, such as the termination of the life estate, a period fixed for division, arrival at full age or the like, the courts held that 'dying without issue’ was referable to this intermediate period. This was the rule laid down in Hilliard v. Kearney, 45 N. C., 221. . . . The statute *196 of 1827 changed the principle making the limitation dying without issue void for remoteness and abrogated the rule of construction which applied it to an intermediate period. This statute applied to all limitations contingent upon dying without issue, and is not restricted to those where there is no intermediate estate.” Its provisions are as follows: “Every contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the body or without issue or issues of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it: Provided, that the rule of construction contained in this section shall not extend to any deed or will made and executed before the fifteenth of January, one thousand eight hundred and twenty-eight.” C. S., 1737. The testatrix did not create a limitation contingent upon the death of Joseph L. Dupree without issue, but gave him lot No. 2, providing in the codicil that if he died leaving a child or children, said child or children should be entitled to his lot. The devise is therefore governed by the decision in Goode v. Hearne, 180 N. C., 475. There the will contained this item: “I give and devise in fee simple to my two daughters, Mamie G. Morris and Agnes Hearne, and to my daughter-in-law, Mamie W. Goode, the wife of George W. Goode, share and share alike, all my real estate wherever situated, and it is my will that the children of my daughter-in-law, Mamie W. Goode, by her husband, George W. Goode, shall, in the event of their mother’s death, inherit her share of the estate.” The Court held that the devise did not come within the purport and meaning of section 1737, supra, and that the mother’s -estate became absolute at the testator’s death. No time was fixed when the contingency should occur and the death of the testator was adopted in accordance with the principle stated in Bank v. Murry, 175 N. C., 65 : “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 of interpretation with us that when an estate by will is limited over on a contingency and no time is fixed for the contingency to occur, the time of the testator’s death will be adopted, unless it appears from the terms of the will that some intervening time is indicated between such death and that of the first taker. Bank v. Johnson, 168 N. C., 304; Dunn v. Hines, 164 N. C., 113; *197 Galloway v. Carter, 100 N. C., 111; Price v. Johnston, 90 N. C., 593; Vass v. Freeman, 56 N. C., 221; Cox v. Hall, 17 N. C., 121.” Joseph L. Dupree survived the testatrix and bas no child. His estate became absolute under the terms of the will at the time of her death. This conclusion, we think, is supported by the decisions of the Court and fortified by the obvious intention of the testatrix as manifested both in the will and the codicil to vest in the first taker a fee-simple title to lot No. 2 at her death, and to provide that if he died in her lifetime his surviving child or children should “be entitled to his or her parent’s lot.” In our opinion the plaintiff has an indefeasible title in fee to the lot in question and the defendant has no right to refuse acceptance of the deed on the ground of the alleged defect. The judgment is Eeversed.