Creek v. Walker.

This is a controversy without action, submitted upon an agreed state of facts, under Code, section 567. J. W. Cheek, being the owner in fee of the locus in quo, executed his will in due form and died during 1875. The will was duly admitted to probate. He (447) devised the land described in the deed attached to the record, together with other real estate, to his son, the plaintiff, T. E. Cheek. He executed a codicil 20 May, 1875, in the following words: "If Thomas Edgar dies unmarried, or leaving no children, I wish two-thirds of his property to go to my brothers and sisters, and the other third to his mother." The plaintiff was at the time of his father's death 9 years of age. He is now married and has one child.

J. W. Cheek left surviving his widow, Rebecca H., who has since intermarried with A. D. Markham. He also left surviving one brother and several sisters — some of whom have died leaving children. The mother of plaintiff, together with her husband; the living sisters, together with their husbands, and the children of the deceased brother and the deceased sisters, have all executed deeds to the plaintiff, reciting the execution of the will, the terms of the codicil, and in consideration of $10 conveying, releasing, confirming, and quitclaiming all the right which they now have or may hereafter have in and to the lands devised as aforesaid. Said deeds are duly proven and recorded. On 10 March, 1905, the plaintiff contracted to sell to the defendant a portion of the land devised to him as aforesaid for a full and valuable consideration. Pursuant thereto he, together with his wife, has executed and tendered a deed, with full warranty and in proper form, conveying to him said land. The defendant declined to accept said deed for that plaintiff cannot make a good and indefeasible title, etc. The question submitted for the decision of the Court is whether, upon the facts agreed, the deed does convey a good and indefeasible title. His Honor being of the opinion that it did, rendered judgment accordingly, to which defendant excepted and appealed. After stating the facts: The plaintiffs contend that by a proper construction of the will of John W. Cheek and codicil thereto, the word "or" should be read "and," so that the contingency upon which the title to the land should vest in the mother and brothers and sisters would be both dying unmarried and leaving no children. If this view should be adopted, Thomas Edgar having married and had issue, the title has become absolute. It is suggested that the word "unmarried" primarily means never having been married. There seems to be authority to support the contention, and in view of the fact that the plaintiff was only 9 years of age at the date of the will and the death of the testator, and was his only child, it is more than probable that such was his intention. It is hardly probable that he intended to tie up, during his life, the title to his inheritance, consisting of houses and lots, tobacco factory lot and cotton gin lot, in a growing town, for the benefit of his (testator's) brothers and sisters and his widow. This view is strengthened by the fact that he gives, in the event of his (Thomas Edgar's) death, one-third to his mother. He could hardly have intended that this limitation should extend through the lifetime of his son for the benefit of his mother, who was many years his senior. The same may be said of his intention respecting the interest given his brothers and sisters. Authority may be found to sustain the suggestion that the primary intention of the testator would be effectuated by reading the word "or" as "and." Underhill on Wills, 448 30 Am and Eng. Enc., 691; Turner v. Whitted,9 N.C. 613. We do not deem it necessary, however, to pass upon the question, because in our opinion the deeds executed by those who, in the event of the death of Thomas Edgar, unmaried [unmarried] or without leaving children, would take, vest in him a good and indefeasible title. (449) Approving Whitfield v. Garris, 134 N.C. 24, we are of opinion that Thomas Edgar took a fee, defeasible on condition that he dies unmarried and leaving no children, in which event the mother and brothers and sisters would take. We considered the effect of the conveyance by those who will in the event provided for take in Kornegayv. Miller, 137 N.C. 659. We do not deem it necessary to review the authorities.

The appellant does not call to our attention any authority in conflict with our conclusion in that case. He suggests that a decision of this Court cannot "bind unborn generations, who may and no doubt will some day contest defendant's title if they can." Undoubtedly, no court can, otherwise than by declaring the law as it understands it in a cause brought before it for adjudication, bind unborn generations. We can only adjudge rights as they are presented to us. The stability of our decisions must rest upon the reasons upon which they are based, the value of the authorities cited, and the well-settled principle that courts will not lightly or save upon overpowering necessity unsettle decisions which have become rules of property upon which people have relied and invested their money. We gave the subject inKornegay v. Miller a careful and we think thorough investigation. While we reviewed the decided cases in this Court and endeavored to gather and declare the principle upon which they are founded, we brought none of them into controversy, unsettled no conclusion reached nor disturbed any right acquired under them. We declared as the conclusion to be drawn from them that the deeds executed by those entitled to the contingent remainder passed to and vested in the grantee or assignee a perfect title, operating not simply by way of an executory contract or estoppel, but as an executed contract, and that in the absence of fraud or imposition the Court would not inquire into the adequacy of the consideration. We think this conclusion in accordance with the latest authorities and "the reason of the thing," and see no reason, upon further consideration, to doubt the (450) soundness of that decision.

There is, however, another view of the subject which we overlooked in the opinion, which strengthens and sustains our view. In Wright i,. Wright, 1 Ves. Sen., 410 (27 Eng. Reprint, 111), Lord Chancellor Hardwicke said: "This is a claim by an heir at law against the act of his ancestor, done for what this Court calls a valuable consideration in the second degree by way of provision or advancement for a younger child. There are two questions. Whether Robert had such a contingent interest, right, or possibility in the lands in question as by any act in the consideration of this Court he could convey, assign, or dispose of. Secondly, supposing he had such a contingent interest as a possibility is properly described to be, whether in fact he has conveyed it by the deed he has executed." After discussing the terms of the will under which Robert took, the LordChancellor says: "But still it was an executory devise, not a remainder on a fee given before. . . . But that is still in contemplation of law a possibility, which, though the law will not permit to be granted or devised, still it may be released, as all sorts of contingencies may, to the owner of the land. The reasons for the law not allowing such a disposition, which this Court will, are mostly very refined, and as LordCowper says in Thomas v. Freeman (2 Vern., 563), would not have prevailed now." His lordship at some length discusses the reason and history of the law, and concludes a review of the authorities by saying: "This is the same thing, though not in that shape; the court not laying weight on the manner, but the substance." He answers the second question by saying that though the grantor had left out the word possibility in the deed, "It is true, he had no immediate claim or demand; but the word claim may describe it inpresenti or futuro, etc." Blackstone (2 Com., 290) says: "Yet reversions and vested remainders may be granted; because (451) the possession of the particular tenant is the possession of him in reversion or remainder; but contingencies and mere possibilities, though they may be released or devised by will or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest." We find a note in Lewis' Blackstone, 290, which so clearly expresses our view and fully sustains our decision in Kornegay v. Miller, 137 N.C. 659, noting the distinction, sometimes overlooked, between contingent interests where the person is certain, but the event upon which he will take uncertain and mere possibilities, that we quote it at length: "Mr. Ritson remarks that, independently of thus confounding contingencies and mere possibilities, as if they were in pari ratione (the same reason, i.e., under the same rule) — which they certainly are not — there is here a great mistake: first, in describing mere possibilities to be such as may be released or devised by will, etc., and, secondly, in supposing devisable possibilities to be incapable of being assigned to a stranger. For, in the first place, there is this wide difference between contingencies (which import a present interest of which the future enjoyment is contingent) and mere possibilities (which import no such present interest), namely, that the former may be released in certain cases, and are generally descendible and devisable, but not so the latter. Suppose, for instance, lands are limited (by executory devise to A in fee, but if A should die before the age of 21, then to C in fee) this is a kind of possibility or contingency which may be released or devised, or may pass to the heir or executor, because there is a present interest, although the enjoyment of it is future and contingent. But where there is no such present interest, as the hope of succession which the heir has from his ancestor in general, this, being a mere or naked possibility, cannot be released or devised."

The learned counsel for appellant says: "We grant that the deeds executed by the present brothers and sisters of J. W. Cheek bind them, and if the present status quo remains until the death of Thomas (452) Edgar the defendant's title will be perfect and indefeasible. But how is it possible for the deed of a brother of J. W. Cheek to operate as an estoppel upon his heir, when as a matter of fact such brother never owned the property in dispute, was never in possession and never had any interest in it until the happening of a certain event, to wit, the death of Thomas Edgar?"

The answer to the suggestion is, we think, manifest. The brothers and sisters of J. W. Cheek owned such an interest as was devisable and, if not parted with, descended to their heirs. As we have seen, without any controversy, this interest was the subject of release to the owner of the land — which would in any event operate as an estoppel on their heirs — and, as we hold, is equally effectual as a valid conveyance. We have in deference to the evident doubts entertained by the learned counsel given the question a careful reexamination, with the result stated herein. While we adhere to what was said in Kornegay v. Miller, in any aspect of this case the deed of the plaintiff, Thomas Edgar, conveys a good and indefeasible title, either by way of a conveyance or a release. The judgment must be

Affirmed.

Cited: Smith v. Moore, 142 N.C. 299; Elkins v. Seigler, 154 N.C. 375;Ham v. Ham, 168 N.C. 492; Bowden v. Lynch, 173 N.C. 208; Shufordv. Brady, 169 N.C. 227.

(453)