Kornegay v. . Morris

In May, 1883, James F. Kornegay made and published his last will and testament, and in August of that year he died; that said will, after the death of the testator, was duly admitted to probate in Wayne County, and the executor, W. F. Kornegay, therein named, qualified; that the testator left him surviving a widow, Frances E. Kornegay, and three sons, the said W. F., J. J. and A. U. Kornegay, who are the legatees and devisees mentioned in the will, W. F. being the oldest, and some fifty years of age, and A. U. the youngest and not twenty-one when his father, the testator, died; J. J. has since died, and since his death W. F. has died, and A. U. has reached his majority of twenty-one years.

That since the death of J. J. and W. F., and since the said A. U. reached his majority, the complaint alleges that he has bargained and sold to the defendant Morris a lot in the city of Goldsboro for $300; that the plaintiff executed a bond for title to said lot, and the defendant executed his note for the purchase money, which is now due; that the plaintiff has tendered to the defendant a deed conveying said lot to the defendant, and that the defendant refuses to pay the same.

The defendant answers and says that he is ready, able and willing to pay for said lot according to the contract, if he can get a clear, (201) indefeasible title thereto, but that said lot is a part of the real estate owned by the said James F. Kornegay, and disposed of by him in the fourteenth paragraph of his will; and that the defendant is advised that the plaintiff cannot make and convey to him such title. The widow, Frances E. Kornegay, is still living.

This makes it necessary that this section fourteen of said will shall be construed, so far at least, as to determine the question presented — whether the plaintiff can make a clear, indefeasible title to said lot so contracted for and sold to the defendant. It is stated that W. F. Kornegay died intestate, without leaving issue or any lineal descendants, and leaving the plaintiff his sole heir.

The testator gave to his wife, Fannie, considerable property for life, which in the eleventh clause of his will, he gave to his son W. F. in trust for his sons, John J. and Albert U. after her death. And in the fourteenth item he provides as follows: "If my sons John and Albert should either one of them die without legitimate offspring, my will is, and I do hereby direct that that portion of my estate given to the one so dying shall go to the son still living, and if both shall die without legitimate offspring, the income arising from both their portions shall go to my wife, Fannie E. Kornegay during her life or widowhood, and in the event of the marriage or death of my wife Fannie, then the portion set aside for them to go to my son, W. F. Kornegay, and his legal representatives."

It is manifest from these provisions that it was not within the contemplation of the testator that these limitations should be fulfilled during his life time. It cannot be that, when he provided a guardian for his son Albert, he expected Albert to die in his life time, nor can it be that, when he made a provision for his wife, to be void upon her (202) marrying, he could have expected her to marry during his life time. So that Hilliard v. Kearney, 45 N.C. 221; Burton v.Conigland, 82 N.C. 99, and other cases cited for the purpose of establishing this position, are not in point. None of the cases cited conflict with this opinion, as to the time not being limited to the testator's death when the conditions or contingencies should happen. But if there had been any doubt as to this (and we think there is not) the statute of 1827, now section 1327 of The Code, and the case of Buchanan v.Buchanan, 99 N.C. 308, has in our opinion settled all doubt on this point.

The devisees John J, and Albert U. took cross remainders, and John dying and leaving no issue, his part went to Albert. Galloway v. Carter,100 N.C. 111; Spruill v. Moore, 40 N.C. 284.

But Albert is still living and has no children, which made the estate of W. F. Kornegay a contingent executory devise. The person (W. F.) being certain, but the event upon which his estate depended being uncertain, it was such a contingent estate as might be transmitted by descent. 2 Fearne Remainders, pp. 28, 30, 433; Fortescue v. Satterthwaite, 23 N.C. 566. And W. F. being dead without issue, and leaving Albert his only heir at law, this contingent estate descended and vested in Albert.

But if Albert dies without leaving issue, the widow, Fannie E., is to have the "income" from the whole estate left John and Albert, until her death or marriage. This gives her a contingent estate in this property. 29 A. E. Enc., 404. Her estate is also contingent, depending upon the death of Albert without leaving issue. This contingency may never happen, and she may never receive any benefit from this estate. But if Albert should die, without leaving issue, before she dies (203) or marries, she may then enforce the collection of the rents arising therefrom, upon or against the lot itself, as this income would be a lien on the property itself. Gray v. West, 93 N.C. 442.

Error. Reversed.