Davis v. . Parker . , 69 N.C. 271 ( 1873 )

This case is governed by Hilliard v. Kearney, Busb. Eq. 221, where the rule is thus stated: "When the estate is defeasible, and no time is fixed on at which it is to become absolute, and the property itself is given and not the mere use of it, if there by any period intermediate between the death of the testator and the death of the legatee, at which the estate may fairly be considered absolute, that time will be adopted."

"If there be no intermediate period, and the alternative is either to adopt the time of the testator's death, or the death of the legatee generally. * * * As the period at which the estate is to become absolute, the former will be adopted unless there be words to forbid it, or some consideration to turn the scale in favor of the latter."

Here the testatrix after providing for the payment of her debts and funeral expenses, says, "the balance of my property of all kind I give to my grandson, Thomas Hollowell, to him and his heirs, and if he should die and leave no lawful heirs of his body, then and in that case I give Celia Mayo the sum of $200, to her and her heirs, and all the balance of my property I give to my nearest relations, c."

The estate of John Thomas was an absolute one at the death of the testatrix, and went upon his death to his representatives.

A judgment may be drawn in conformity with this opinion. Judgment below reversed.