Fields v. Whitfield

Smith, C. J., (after stating the case.) We concur in the construction put upon the clause of the testator’s will, recited and set out in the case agreed, as warranted by the ruling in Price v. Johnson, 90 N. C., 592, where the phraseology was similar. It is there decided, following the reasoning in Hilliard v. Kearney, Busb. Eq., 221, as applied to a devise of an estate in common to several, which is defeasible, and no time is fixed in which it is to become absolute — whether at the death of the testator or of the devisee — the former will be accepted [310] in the absence of any indication of a different time for the vesting, and when such indication does appear, the time thus indicated will be adopted. In that case the intention of the testator was made manifest in fixing the period at the arrival of the devisee at the age of twenty-five years. The coincidence in the cases appears in the fact that the devisee in one case was left free, on attaining the prescribed period of life, to dispose of the property given him “as he pleased,” while he could not do so before, and in the other the land was to remain in common until the several tenants attained the same age, and then each devisee was “ to receive his proportionate share,” that is, to have it separated and assigned to him as his own, and free from further limitations. The quality of survivorship thus being detached, and all being of full age under the requirements of the will, a division was made among the five original devisees, by which each became seized of an estate in fee in the several parts, and the devise to said Tabitha and Mary Jane, as an executory contingent limitation, fails, as it would by reason of the further fact that one of the five haying died, leaving children, the contingency never can occur of death of all without issue. After the deaths of James B., in July, 1862, and Nathan B., in May, 1864, neither of whom were ever married, their shares were, in a proceeding for partition, divided among the surviving brothers, who, and Mary Jane and the children of Tabitha who died in October, 1860, were the heirs at law of the deceased intestates. The defendant, William B., having acquired the several shares allotted in the second division to Lewis and Allen by a quit-claim deed from them to him, not embracing the lands allotted to them in the first division among the five brothers, and having no issue of his body, by his deed of April 21, 1888, conveyed to the plaintiffs, for the recited [311] consideration of three thousand dollars, all his, the grantor’s estate, in the tracts thus .divided among the three brothers, and which descended from the deceased two brothers, being estimated to contain fifty-five acres, with the covenant now sued on. It results that a good title has been conveyed to three-fifths parts of the said descended lands, while the title to two-fifths parts remained in the said Mary Jane and the children of Tabitha. The value of the defective title is $400, and the judgment awarding that sum is correct, and must be affirmed. Affirmed'.