Bryan v. Harper

Allbf, J. Two cases in our Reports (Simmons v. Flemming, 157 N. C., 390, and Braswell v. Morehead, 45 N. C., 28) are decisive of the appeal. The Court said in the first of these cases, citing Ritch v. Morris, 78 N. C., 377, and Britt v. Smith, 86 N. C., 308, “The rule seems to be that whenever personal property is given, in terms amounting to a residuary bequest, to be enjoyed by persons in succession, the interpretation the court puts upon the bequest is that the persons indicated are to enjoy the same in succession; and in order to give effect to its interpretation the court, as a general rule, will direct so much of it as is of a perishable nature to be converted into money by the executor, and the interest paid to the legatee for life, and the principal to the person in remainder, but when the bequest is specific and is not of the residuum, the executor should deliver the property to the one to whom it is given for life, taking an inventory and receipt for the benefit of the remainder-man,” and in the second, which is approved in Williams v. Smith, 57 N. C., 256; Gorden v. Lowther, 75 N. C., 195; Peterson v. Ferrell, 127 N. C., 169, “Owners of executory bequests and other contingent interests stand in a position, in this respect, similar to vested remainder-men, and have a similar right to the protective jurisdiction of the court.” The bequest to Mrs. Harper is in a residuary clause, is contingent upon her remaining unmarried until the youngest child becomes twenty-one, and falls directly within these authorities. The case of Williams v. Cotton, 56 N. C., 395, which contains expressions seemingly at variance with the decision in Braswell v. Morehead, is considered and distinguished in Ritch v. Morris and In re Knowles, 148 N. C., 461, and is shown to have rested upon the peculiar character of the property disposed of in the will then under consideration and on the language of the will. Nor is the condition or limitation in the will, providing that the be-, quest to the widow be equally divided between the children of the testator in the event she shall remarry during the minority of either of the children, void as a restraint upon marriage. “It is very generally held that conditions against the remarriage of the testator’s widow are valid, whether the property be real or personal, and whether there is an immediate gift over or not; and the same is true against the remarriage of a widower.” 40 Oyc., 1702, citing in support of the text decisions from the Supreme Court of the United [310] States and from the highest courts of twenty-four States and from the courts of England and Canada. In the note to the Matter of Seaman, Ann. Gas., 1918 B, 1144, after discussing the proposition that a condition in general restraint of marriage is void, the editor says: “Where, however, a condition subsequent in total restraint of marriage is imposed on the wife or the husband of the testator the courts will uphold the condition. Daboll v. Moon, 88 Conn., 387, Ann. Cas. 1917 B 164, 91 Atl. 646, L. R. A. 1915 A 311; Nagle v. Hersch, 59 Ind. App. 282, 108 N. E. 9; Knost v. Knost, 229 Mo. 170, 129 S. W. 665, 49 L. R. A. (N. S.) 627; Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949, 49 L. R. A. (N. S.) 605; Matter of Schriever, 91 Misc. 656, 155 N. Y. S. 826; Littler v. Dielmann, 48 Tex. Civ. App. 392, 106 S. W. 1137; Haring v. Shelton (Tex.) 114, S. W. 398; Re Allen, 7 Dom. L. Rep., 494; Re Lacasse, 24 Ont. W. Rep. 300, 9 Dom. L. Rep. 831, 4 Ont. W. N. 986. It will be noted that these authorities make no distinction between the widow and the widower, and that the wife has the same right as the husband to make her gift conditional upon remaining single. The case of In re Miller, 159 N. C., 124, goes much further because there a condition attached to a devise of realty to a daughter that upon her death or marriage the estate should go to a son, was sustained as a valid conditional limitation, and commenting on this case in Gard v. Mason, 169 N. C., 508, the Court says that the fact that there is a limitation over upon marriage, as in this case, is “determinative,” “controlling,” in favor of the validity of the provision in bequests of personal estate, and “is always allowed much weight in cases of real estate.” In our opinion his Honor properly held that the widow was not entitled to have her share of the personal estate turned over to her, and the judgment is Affirmed.