Rees v. . Williams , 164 N.C. 128 ( 1913 )

The determination of this appeal depends upon the construction of the will under which the plaintiffs claim, in which the land in controversy is devised to the plaintiff, Jennie Lee, now Rees, with the limitation that if she "shall die leaving issue surviving her, then to such issue and their heirs forever," but if she "shall die without issue surviving her," then the property "to return to my eldest daughter," etc.

Do the words "die leaving issue" and "die without issue" refer to the death of the devisee in the lifetime of the testatrix, or to the time when the devisee dies, whether before or after the testatrix? Did the testatrix intend to say. I give this property to my daughter; but if she dies before I do, leaving issue, I give it to them; and if she die before I do, without issue, I give it to my eldest daughter, etc? or did she intend to give it to her, and if at her death she left issue, then to them, and if no issue, then to the eldest daughter?

The plaintiffs contend that the first is the correct construction, and that as the devisee has survived the testatrix, she is the owner of the property in fee.

The older authorities fully sustain the position of the plaintiffs, and a large number of them are collected and discussed in Buchanan v. Buchanan,99 N.C. 311, where the reason for the rule is stated to be that as the limitation is upon an indefinite failure of issue, it is void for remoteness; but since the statute of 1827, now Revisal, sec. 1581, the rule is otherwise.

That statute privides [provides] that, "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 (132) without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person shall die, 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 15 January, 1828."

Following this statute, it has been held in several cases, as was said by Justice Hoke in Harrell v. Hagan, 147 N.C. 113, that "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 this language was approved in Perrett v. Bird,152 N.C. 220, and Smith v. Lumber Co., 155 N.C. 389.

It appears, therefore, to be established that since the act of 1827 it cannot be determined who will take under the limitation until the death of Jennie Lee Rees, and that if she should die leaving issue, they would be the owners of the property devised, and as they would not be bound by the deed tendered, it does not pass an indefeasible title.

If the defendant should accept the deed and Mrs. Rees should die leaving issue, the issue could defeat the deed and recover the land under the limitations in the will.

Reversed.

Cited: S. c., 165 N.C. 201; Burden v. Lipsitz, 166 N.C. 525; Hobgoodv. Hobgood, 169 N.C. 489; O'Neal v. Borders, 170 N.C. 484.