Erwin v. . Erwin ( 1894 )

The Belvidere place was devised to Cecelia M. Erwin for her life, with remainder after her death to George P. Erwin (369) and his children, "provided he pays to my estate the sum of two thousand dollars." It will be seen that a condition was attached to the devise of the remainder. This devise could never take effect until the payment of the sum named. This sum was not a charge upon the land, for if such were the case the estate in remainder in the land would have vested in George P. Erwin and his children, subject to a lien or charge thereon for the same. But by virtue of the condition precedent the estate in remainder could not vest until the payment of the sum named.

It will appear by Item 8 of the will that the testator intended to make further disposition, by codicil, of the personal estate and the proceeds of real estate directed to be sold, and which should remain in the hands of the executor after payment of debts and charges incident to the execution of the will and of the specific legacies. Having failed to make such disposition, it necessarily follows that he died intestate as to such portion of his estate as was not specifically devised or bequeathed, there being no residuary clause in the will. There is nothing in the will to indicate that the testator intended that the two thousand dollars to be paid by George P. Erwin should be distributed in any other manner than the balance of the personal estate. It, therefore, when paid in becomes part of the said personal estate liable for the debts, charges and legacies.

The annuity of three hundred dollars bequeathed to said Cecelia never having been paid, and her claim therefor having been duly assigned to the plaintiff and reduced to judgment, has now become a debt against the estate, and all the other personal property having been exhausted, it will be the duty of the executor to satisfy these judgments out of the said two thousand dollars if the same has been paid in. If the same shall not be paid, the condition not being fulfilled, the devise of the remainder in fee of the Belvidere place will never take effect, and said lands will become a part of the undevised real estate of the testator, (370) subject to the satisfaction of the judgments. This was clearly the will of the testator. His expressed desire was to keep this old family mansion in the family as long as possible, so he devised it to Cecelia for her life, and if George P. Erwin should pay the two thousand dollars, then it will go to him and his children in fee as tenants in common. It rests with him whether the first desire of the testator shall be carried out.

Affirmed.

Cited: Allen v. Allen, 121 N.C. 334; Helms v. Helms, 135 N.C. 170.