Harris v. . Russell , 124 N.C. 547 ( 1899 )

Controversy without action under The Code, sec. 567. Plaintiff's father, in 1868, entered into a marriage contract with his intended wife, in which he stipulated that if she survived him "then in that case she should be entitled to the use, possession and enjoyment of the lot owned by him" (lot No. 54, in square 8, in Charlotte), "with all the improvements thereon, for and during the term of her natural life, and at her death said real estate to descend to the heirs at law of said party of the (554) first part," the plaintiff's father, who died in 1870. The widow is still living, and the plaintiff at his father's death was, and still is, his only heir at law. The widow, conveyed her interest in 1893 to the plaintiff who, in 1896, conveyed his interest to the defendant, and took her notes for the purchase price. She paid a part and now refuses to pay the balance, on the ground that the plaintiff cannot make her a good title during the lifetime of the widow.

The only question is whether the estate vested in the plaintiff at his father's death.

In Rives v. Frizzele, 43 N.C. 237, there was a bequest to the widow for life, and "after her death, to be equally divided among his lawful heirs." Held a vested legacy at the time of his death.

In Brinson v. Wharton, 43 N.C. 80, a testator bequeathed all the residue to his wife "during her widowhood, and when she marries, then, that all the remaining property, both real and personal shall be equally divided between his children and beloved wife, share and share alike." Held, a vested remainder.

In DeVane v. Larkins, 56 N.C. 377, upon similar facts, the decision was the same.

In each of the above cases it was a conveyance by devise, and it was held that if one of the heirs died before the death of the widow or the happening of the future event, his or her share went to his or her representative, and that "after" or "upon" the death of the wife, or the like expression, does not make a contingency, but merely denotes the commencement of the remainder in point of enjoyment.

The case before use is not a conveyance, but a covenant — marriage contract, evidently, for the benefit and protection of the wife, if (555) she should become a widow. Upon the death of an intestate ancestor, the title to his estate descends and vests at once in his heirs; it cannot stand in abeyance and vest in future like an executory devise.

Consider an estate with a conditional limitation: The title passes at once, and may be divested but the happening or non-happening of some future event, but this can only take place when so expressed or clearly intended. There is nothing in this agreement indicating any intention that the estate, which vested in the plaintiff by his father's death, should be defeated by the death of the widow. We are satisfied that S. A. Harris, Sr., meant that his heir, the plaintiff, or heirs, if he should have other children, should possess and enjoy the property after the widow's death, and that he did not mean to divert the law of descent from its natural course. The plaintiff's estate therefore vested at his father's death, and we see no reason why he cannot give the defendant a good title.

AFFIRMED.

Cited: James v. Hooker, 172 N.C. 782.