Cilley v. . Geitner , 182 N.C. 714 ( 1921 )

HOKE, J., dissenting. It appears from the will of A. A. Shuford that the only specific, unconditional bequests made by him, to become effective at the time of his death, were:

1. The allowance of $2,000 per year to his widow for each and every year that she should survive him.

2. The allowance of $1,000 per year to each of the 7 children, naming them, "during the term of the natural life" of his widow.

3. Two hundred dollars a year to the pastor of the Corinth Reformed Church of Hickory during the life of his widow.

4. An allowance of $200 a year to Julius H. Shuford, and $100 a year to Mrs. Laura Ramseur, to be paid to each during the remainder of his or her life, with definite directions, (4) and (6), as to the manner and means of providing these sums after the death of the testator's widow in the event they or either of them survived her.

5. He expressly directs his executors "as long as his said wife shall live" to keep his estate undivided, managing and handling it according to their best business judgment, and (9) vests in his executors full power and authority to change any investment and to sell, convey, and convert any real estate, exercising that care which they would use in the management of their own business.

In item (7) he says: "I direct my executors, or the survivors of them, after the death of my wife, to distribute and divide my estate among all of my children, share and share alike, the children of any deceased child of mine taking his or her share: Provided, that if any of my children are dead without lineal descendants, the (717) share of such child or children shall go to my other children equally."

He further declares in this item that he does not mean that his estate shall be converted into cash, but that the surviving executors shall value and apportion it, and, in item (8), he makes provision for "meeting certain contingencies in the general division."

The closing language of the will is as follows: "In the event the said Geitner or Menzies should die, leaving the other and my wife surviving, then I direct them to agree upon and nominate an executor as a substitute for the deceased. The person so nominated to have all power and authority as an executor as though he were specifically herein named as such, and in case of the death of any executors during the lifetime of my said wife, I direct the vacancy to be filled in the same way in order that there may be two executors to survive my wife and cooperate with each other in valuing and distributing my estate under the provisions of this will."

It seems clear that the question as to what individuals would become the recipients of the bulk of the estate and its surplus earnings was not to be determined, and could not be, until the death of his widow, at which time the property should be divided by the two executors among the children of the testator living at that time, and the children of such who should be dead leaving children, in which event the children of such deceased child taking his or her share, with a provision that when any child has died without lineal descendants, the share of such child or children should go to the other children of the testator equally.

The provisions of item 7, as above set out, are clear and unequivocal. Under the terms thereof the property devised has been properly divided into 7 equal shares, which it is admitted has been equitably and fairly done. Of these 7 shares each of the 6 living children is entitled to one share, and the other share is to go to the two children of his deceased daughter, Maude E. Cilley. There is no contingency under which the son-in-law, the petitioner, Gordon H. Cilley, is entitled to receive any part of the estate. The two infant children of the deceased daughter take, not as the heirs of the mother, but directly from the testator under item 7 of the will. And, therefore, their father, Gordon H. Cilley, has no interest as representative of his wife. Nor could he derive any by any agreement made with the guardian of said infants, nor can the court authorize said guardian to disburse or administer the one-seventh share accruing to said infants, according to his own judgment, nor under the laws of this State could said fund accruing to his said children be turned over to a guardian appointed by the courts of another State. It would be necessary that a guardian should qualify in this State. If it is desired to remove the fund to another State, proper proceedings must be taken in accordance with our statute, C. S. 2195, by petition filed before the clerk of the Superior Court, (718) and judgment rendered thereon in the manner provided in C. S. 2196.

The terms of item 7 of the will are clear and explicit, and capable of but one construction, which is as above state. In Anderson v. Felton,36 N.C. 55, where the provision of the will was for a division "at the time my daughter Sarah arrives to 15," Ruffin, C. J., held that only those children would take who were living when Sarah arrived at 15, saying that until the time appointed for the division the legacies did not vest. To the same effect, Threadgill v. Ingram, 23 N.C. 577; Skinner v. Lamb,25 N.C. 157; Gregory v. Beasley, 36 N.C. 25; Nelson v. Moore, ib., 31.

"Where a legacy is given ``at 21, or in case or provided' the legatee attain such age, these words annex the time to the substance of legacy, and the legatt's right to it will depend on his being alive at the time fixed for payment." Green v. Green, 86 N.C. 546; Giles v. Franks, 17 N.C. 521. There are numerous other cases to the same effect.

In Blake v. Blake, 118 N.C. 575, it is said: "Under the devise in the will, which is appended to the complaint, the property was left in trust to be ``divided when the youngest child should arrive at age.' The contingency not yet having happened, a division cannot be ordered. Green v. Green,86 N.C. 546. The complaint fails to state a cause of action."

Bowen v. Hackney, 136 N.C. 187, and ib., 200, are directly in point, and are decisive of the construction to be placed upon item 7 of this will. In the first of these cases it is said, "Under a devise providing that at the expiration of the estate of a life tenant, the property given to him shall be equally divided between the children of the testator, the representatives of such children as may have died to stand in the place of their ancestors, the husband of one of the children who died without issue and before the life tenant does not take under the will, though he be the sole devisee of the wife." The point is elaborately discussed there, and is restated the second time that case was before the Court, 36 N.C. 200. And the decision has been repeated in Clark v. Wimberly, 171 N.C. 48; Jenkins v. Lambeth,172 N.C. 466, and Grantham v. Jinnette, 177 N.C. 229.

In Clark v. Wimberly, supra, the Court says: "By the terms of the will the children of Martha L. Wimberly held an estate dependent upon their being alive and filling the description at the death of their mother, the life tenant. If they died before that time, without issue, their interest became extinct, and if they so died, leaving issue, these last became the owners of the interest of their deceased parent, but holding direct from the testator." In Whitesides v. Cooper, 115 N.C. 573, the devise was almost in totidem verbis, as in (719) this case, and received the same construction, which has been followed since in Hutchinson v. Lucas, 181 N.C. 56.

It is perfectly clear that the children of Maude E. Cilley are entitled to the interest in this estate which she would have taken if she had survived her mother — not as her heirs or next of kin, but as devisees and legatees of A. A. Shuford.

In Thompson v. Humphrey, 179 N.C. 44, the Court says: "The construction of the will makes the estate of the children a defeasible fee for they may never take, as the mother may survive all of them, in which event their children would take in their places, and then, not by descent from them, but directly from the devisor under the will as purchasers." To same purport, Smith v. Lumber Co., 155 N.C. 389.

The will must be construed and the distribution of the estate made according to the laws of North Carolina. Leake v. Gilchrist, 13 N.C. 77;Hartness v. Pharr, 133 N.C. 566; Hall v. R. R., 146 N.C. 345.

Maude E. Cilley having predeceased her mother, Gordon H. Cilley, her surviving husband, would have no right of curtesy in any property. Hoke, J., in Jones v. Whichard, 163 N.C. 241.

The case must be remanded that judgment may be entered in the court below, and further proceedings had, in conformity to this opinion.

Reversed.

HOKE, J., dissenting.

Cited: Poole v. Thompson, 183 N.C. 597; Scales v. Barringer,192 N.C. 101; Trust Co. v. Henderson, 225 N.C. 570.