Springs v. Hopkins

Walker, J., after stating the case: The general rule for the construction of a deed is not essentially different from that which governs in the interpretation of other instruments, which is, that we must seek for the intention, and, when discovered, it should be enforced if not inconsistent with the law. Rowland v. Rowland, 93 N. C., 214. Technical rules must generally yield if, in their application, they will disappoint or defeat the clearly expressed intention. Beacom v. Amos, 161 N. C., 357; Lumber Co. v. Lumber Co., 169 N. C., 80; Shuford v. Brady, ibid., 224. It is true that the law favors the early vesting of estates, but this rule must not be allowed to defeat the intention of the grantor when clearly expressed. It is apparent from the contents — 491 — of tbis deed that the grantor, Mrs. Nancy S. Smith, intended to provide for Mrs. Carrie E. Smith, the wife of her son, W. Me. Smith, for her life, and, therefore, conveyed a life estate in the land to her, with the provision that at her death it should go to her son, W. Me. Smith, if her death occurred in his lifetime, to be held by him in trust for the only use, benefit, and support of their children, Lillian A. Smith and W. Bernard Smith, and such other children as shall have been born to them or to him and any future wife. This trust was to continue until the youngest of the children should be 21 years old, when the use passed to them and their heirs forever, freed from the trust, the share of any of said children without issue to vest in the survivor or survivors of them, and their heirs, and if all should die in the lifetime of W. Me. Smith without issue, then over to W. H. Bailey, to be held by him upon the trusts declared in the deed. When the grantor provided that when the youngest child should attain to full age the use should go to the children named, the trust which was theretofore active became passive, and the use was executed by the statute, for there was nothing for the trustee to do except to hold the legal title, and this, by virtue of the statute, was transferred to the use. This vested the complete title, then, in fee, though not absolute, as the share of each child was subject to be divested and go over to the survivors or survivor upon his or her death without issue, finally vesting the sole estate absolutely in the last survivor, if the others had died without issue. This limitation created successive survivorships in the children, depending upon the happening of the events, as to each of them, of dying without issue until the last in the succession is reached, in whom the estate will vest absolutely. The case, in this view of it and without reference to the other terms of the will, is brought directly within the principle thus stated in Harrell v. Hagan, 147 N. C., 111, and more recently approved in Smith v. Lumber Co., 155 N. C., 389: “The clause of the will here in question conveyed to the four daughters named an estate of remainder in fee, after the life estate of their mother, and determinable as to each holder’s share on her dying without leaving a lawful heir. Sessoms v. Sessoms, 144 N. C., 121; Whitfield v. Garris, 134 N. C., 24. Under several of the more recent decisions of the Court the event by which the interest of each is to be determined must be referred, not to the death of the devisor, but to that of the several takers of the estate in remainder, respectively, without leaving a lawful heir. Kornegay v. Morris, 122 N. C., 199; Williams v. Lewis, 100 N. C., 142; Buchanan v. Buchanan, 99 N. C., 308. And by reason of the terms in which the contingency is expressed, That if each or all of the girls die without leaving a lawful heir, then the land,’ etc.,-and other indications which could be referred to, the estate does not become absolute in the other — 492 — daughters on. the death of one of them without leaving such heir, but the determinable quality of each interest continues to affect such interest until the event occurs by which it is to be determined or the estate becomes absolute. Galloway v. Carter, 100 N. C., 112; Hilliard v. Kearney, 45 N. C., 221.” The event of one or more of the children dying without issue has never occurred, except as to ~W. Bernard Smith, and the three surviving children, Lillian A. Smith, Julia E. Smith, and Junius M. Smith, all being more than 21 years old, Junius being the youngest, are seized of defeasible estates as tenants in common, with the right of survivorship as indicated. They are vested interests, but .subject to be divested upon the happening of the contingency. Whitfield v. Garris, 134 N. C., 24; Starnes v. Hill, 112 N. C., 1; Whitesides v. Cooper, 115 N. C., 570; Bowen v. Hackney, 136 N. C., 190. It is said in Whitesides v. Cooper, supra, quoting from Gray on Perpetuities, 108: “The true test in limitations of this character is that if the conditional element is incorporated into the description of the gift to the remainderman (as it is in the case under consideration), then the remainder is contingent, but if after the words giving a vested interest a clause is added divesting it, the remainder is vested. Thus on a devise to A. for life, remainder to his children, but if any child die in the lifetime of A. his share to go to those who survive, the share of each child is said to be vested, subject to be divested by its death. But on a devise (as in the present case) to A. for life, remainder to such of his children as survive him, the remainder is contingent.” The extended reference to this feature of the case will more fully appear hereafter. By the terms of the deed, then, when the youngest child arrived at full age the estate in the land vested in the children, subject to be determined as to each if he or she died without issue at any time, and this succession of survivorships extended to the longest liver, and if he or she had died without issue during the life of W. Me. Smith, the limitation to Mr. Bailey, the trustee named in the creation of the spendthrift trust, would have taken effect; but as all'the children survived their father, W. Me. Smith, the limitation over was defeated, and the estate remained in them, with its defeasible quality. But it is contended by the counsel, Mr. Glasgow, who argued the case here for the plaintiff, and who certainly presented it with great force and learning, that the estate became absolute in the children either at the time the youngest was 21 years old or, at all events, at the death of W. Me. Smith; but we think if it were so held it would be contrary to the clearly expressed intention of the donor and the terms of the deed. The contention is based upon several considerations, among them being that in doubtful cases any interest, whether vested — 493 — or contingent, ought, if possible, to be construed as absolute or indefeasible in the first instance rather than defeasible; but if it cannot be so construed, such a construction ought to be put upon the conditional expressions which render the estate defeasible as will confine their operation to as early a period as may be, so that it may become an absolute interest as soon as it can fairly be considered to be so, and that the law favors the free and uncontrolled use and enjoyment of property, with the power of alienation, while the defeasible quality of an interest tends to abridge both. We do not see at what period we could hold that the estate should become absolute in the children, if it is not indicated in the deed. It is very sure that at the maturity of the youngest child it was intended that the estate should “then” vest in them as tenants in common, subject to be defeated by the’ death of any without issue. When the youngest is of age, the limitation is then made to the children, designating two of them by name, and there is nothing to show an intention that they should then take absolutely, for the condition as to survivorship is attached to the estate in common then created, or which then vested in possession, freed from the trust. It was not intended that they should take absolutely at the death of W. Me. Smith, if they‘survived him, as there are no words to indicate that the event of dying without issue should take place in his lifetime rather than at any time, or which authorize us to select the event of his death as the one upon the happening of which the estate should vest absolutely and unconditionally in them. When the grantor comes to provide for the ulterior limitation, he fixes the death of all of them as the event upon which the estate should go over and vest in the trustee for the benefit of W. Me. Smith; but that is all. If this event should not happen, it was her clear intention that, as among themselves, their estates should be defeasible and there should be successive sur-vivorships. There is no provision for a division of the land. There is nothing to confine the defeasible quality of their estates to any single period, other than that of the death without issue of all the children save one. Hilliard v. Kearney, 45 N. C., 222. It will be observed that in this deed the words are substantially employed which Chief Justice Pearson said would create a successive sur-vivorship. If any of them shall die, his or her share shall vest in the “survivors or survivor.” The cases relied on by plaintiff are not in point. There is no term fixed for a division, as in Bank v. Johnson, 168 N. C., 304, as the estate is to remain in common until the final period of vesting absolutely has come. The ulterior limitation is gone, because the event has not happened upon which it was to take effect, and but one estate is left, it being the one given to the children, and they take according to the — 494 — terms of the gift, and not otherwise. A dying in the lifetime of their father is not mentioned, except as it refers to the death of all of them without issue, which has not - occurred, and, therefore, the estate remains in them as it was originally created and subject to the condition which was annexed thereto. Williams v. Lewis, 100 N. C., 142; Galloway v. Carter, ibid., 111. It will appear from a perusal of this deed that the grantor was striving to keep the property within one line of devolution, so that those she favored, or the primary objects of her bounty, could have and enjoy it as long as permitted by the law, and for this purpose she created the estates of survivorship to the last one in the line, and even reserved a power of revocation for the purpose of better effectuating her intention, and she did revoke the power given to Carrie E. Smith, to sell or mortgage her estate. As she did not revoke the use in favor of the children, either by her will or by any other writing, the power of revocation has no effect upon the construction of the deed as to them. Witherington v. Herring, 140 N. C., 495. It was argued that our construction of the limitation would violate the rule against perpetuities, but we do not think so, for the rule, as its very language implies, refers solely to the vesting of estates, and does not. concern itself with their possession or enjoyment, nor does it require that interests should end within specified limits. 30 Cyc., 1480, 1482; Baker v. Pender, 50 N. C., 351; Blake v. Page, 60 N. C., 252; Williams v. McCombs, 38 N. C., 450. The eases just cited were decisions upon executory devises; but conditional limitations, or shifting-uses, are governed by the same reason. Smith v. Brisson, 90 N. C., 284, where Justice Ashe says: “At common law a fee simple could not be limited after a fee simple. There was no way known to that law by which a vested fee simple could be put an end to and another estate put in its place; and the reason is, because no freehold could pass without livery of seizin, which must oiiefate immediately or not at all. But after the Statute of Uses, 27 Henry VIII., when the possession of the legal estate was transferred to the use, vesting the legal estate in the cestui que use in the same quality, manner, form, and condition that he held the use, and the courts of law assumed jurisdiction of uses, it was held that an estate created by a deed operating under the statute might be made to commence in futuro without any immediate transmutation of possession; as by a bargain and sale, or a covenant to stand seized to uses. 'Gessante rations cessat et lex.' And consequently it was held that, by such conveyances, inheritances might be made to shift from one to another upon a supervening contingency, which, to avoid perpetuities, was required to be such as must happen within a life or lives in being and the period of gestation and twenty-one years thereafter. — 495 — Tben.ce arose tbe doctrine of springing and shifting uses, or conditional limitations. A springing use is one wbicb arises from tbe seizin of tbe grantor, and where there is no estate going before it; but a conditional limitation, or shifting use, is always in derogation of a preceding estate. 2 Minor’s Inst., 816. An example of this is where an estate is conveyed by bargain and sale or by covenant to stand seized to A. and his heirs, but if B. shall pay to A. $100 within thirty days, then to B. and his heirs. It was under this doctrine of a shifting use that it has been held, since very early after the statute of uses, that a fee simple may be limited after a fee simple, either by deed or will. If by deed, it is a conditional limitation; if by will, it is an executory devise. ‘And in both these cases a fee may be limited after a fee.’ 2 Blk. Com., 235.” Our conclusion is that there was error in the ruling of the Superior Court. It may be, though we give no opinion in regard to it, that by reciprocal conveyances or mutual releases, as between the three children, the title can be perfected in each of them as to his or her third interest, Beacom v. Amos, supra, 161 N. C., 357; Snyder v. Grandstaff, 96 Va., 473; but that is a matter which the parties will consider and act upon as they may be advised. Reversed. Allest, J., dissenting.