White v. Alexander , 24 N.C. App. 23 ( 1974 )

BALEY, Judge.

The question for decision in this appeal is whether the heirs of the testatrix are to be determined at the date of the death of the testatrix, Harriet Stokes, or at the date of death of the holder of the intervening life estate, her son Samuel Stokes. We are of the opinion that the roll must be called at the date of the testatrix’s death and, therefore, affirm the judgment entered by the trial court.

In the absence of a contrary intention clearly expressed in the will or derived from its context in the light of surrounding circumstances, the general rule of testamentary construction supported by the weight of authority is that the class described as heirs of the testatrix to whom a remainder or executory interest is given by will is to be ascertained at the death of the testatrix. Witty v. Witty, 184 N.C. 375, 114 S.E. 482; Baugham v. Trust Co., 181 N.C. 406, 107 S.E. 431; Jenkins v. Lambeth, 172 N.C. 466, 90 S.E. 513; Jones v. Oliver, 38 N.C. 369; see Annot., 49 A.L.R. 174 (1927). The fact that the first taker of an intermediate estate, the life tenant, will be one of the class of heirs of the testatrix does not prevent the ascertainment of the membership of the class at the time of the testatrix’s death. Baugham v. Trust Co., supra; Annot., 13 A.L.R. 615 (1921) and supplementary annotations. Nor does the fact that the gift to heirs is contingent upon a future event which may or may not happen postpone the determination of the heirs until the occurrence of the event. Annot., 49 A.L.R., supra at 185.

In this case testatrix conveyed to her son, Samuel Stokes, the tract of land on which she resided “to be his to use and enjoy during his lifetime, and if he shall die without heirs of his body . . . his wife . . . shall use . . . during her widowhood . . . and at her death or remarriage . . . shall go to my heirs.” Other references to children in the will indicate that “heirs of the body” clearly referred to his children, and the Rule in Shelley’s Case therefore does not operate. This devise conveyed to Samuel Stokes a life estate and in the event of his death without children an estate to his wife during her widowhood and remainder to the heirs of testatrix.

By the will the heirs of the testatrix acquired an estate which could not be taken away, and it was both transferable and inheritable.

“ [D] ecisions of this Court hold that the interest in an executory devise or bequest is transmissible to the heir or executor of one dying before the happening of the contingency upon which it depends. Lewis v. Smith, 23 N.C. 145; Fortescue v. Satterthwaite, 23 N.C. 566; Moore v. Barrow, 24 N.C. 436; Weeks v. Weeks, 40 N.C. 111; Sanderlin v. DeFord, 47 N.C. 75; Newkirk v. Hawes, 58 N.C. 265; Mayhew v. Davidson, 62 N.C. 47. [citations omitted.]

In the Fortescue case, supra, referring to a cited case, it is said; ‘ . . . The judges seem to have considered it as settled that contingent interests, such as executory devises to persons who are certain, were assignable. They may be assigned both in real and personal property, and by any mode of conveyance by which they might be transferred had they been vested remainders.’

Also in the Mayhew case, supra, it is said: ‘We have here then a contingent limitation, where the persons are certain and the event uncertain. Interests of this sort, if in land, are transmissible by descent; if in personalty, devolve upon the personal representative,’ citing the Newkirk case, supra.” Seawell v. Cheshire, 241 N.C. 629, 637, 86 S.E. 2d 256, 261-62,

They acquired such estate at the time of testatrix’s death. It was contingent upon the happening of a future event which may or may not happen, that is, the death of Samuel Stokes without children. The gift to a class “my heirs” contingent upon an event, not upon the identity of the persons who took upon the happening of that event, does not import any uncertainty as to the membership of the class itself, but only uncertainty as to the happening of the future event. The persons who took the remainder were the heirs of the testatrix, and they were ascertainable at her death. The will does not say that the remainder is limited to the heirs of the testatrix then living but says simply “to my heirs.” See Newkirk v. Hawes, 58 N.C. 265. There is no language in the will which indicates any contrary intent. Since the estate conveyed in the will involves only a contingency of event and not of persons, the roll is to be called as of the death of the testatrix. This comports with the general rule of testamentary construction which applies to remainders contingent only on an event. See Witty v. Witty, supra; Jenkins v. Lambeth, supra; Jones v. Oliver, supra.

The case of Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863, cited by appellants, is distinguishable. There the testator devised a fee simple, defeasible upon the devisee’s dying without issue. The court held that the heirs, who took directly from the testator when the devisee of the fee died without issue, were to be determined as of the happening of that event. In the case at bar, the devisee acquired at the testatrix’s death a life interest and no more, and this life interest coexisted with the remainder estate conveyed at the same time to the heirs of testatrix.

However the interest conveyed by testatrix to her heirs may be denominated, it passed at her death, and the heirs must be determined as of the date of her death.

Affirmed.

Judges Morris and Hedrick concur.