It is not to be denied, that at common law it was settled, that the words, "if my son should die without lawful issue," unexplained, imported, in a legal sense, the failure of issue at any indefinite time, whenever it might happen. And this was true, both in respect of real and personal property. There is in England a vast number of cases on this branch of the law; beginning with that of Burford v. Lee, 2 Freeman, 210, and coming down to a very late day. Recently, they have been elaborately reviewed by Lord BROUGHAM, upon an appeal from the Vice Chancellor, in Campbell v. Harding, 2 Rus. Mylne, 390, and the doctrine reasserted. In this State, the same (136) construction has prevailed. Sutton v. Wood, 1 N.C. 399. InDavidson v. Davidson, 8 N.C. 163, the point was raised once more, and the Court earnestly pressed to receive these words in their natural
signification, of leaving issue living at the time of the death of the parent, so as to support a limitation over. But the Judges, though with the utmost reluctance, felt obliged by authority to hold that the limitation was too remote, although the words there were, "die without having issue." They were not insensible, that this technical construction often defeated the intention of testators, and would readily have laid hold of anything to take the case out of the rule; yet it had so long prevailed, and so much property depended on it, that no power, short of that of the Legislature, was competent to abrogate or modify it. Finally, however, the Legislature did interfere and pass the act of 1827, in which it is declared, that "dying without heirs or issue," shall be interpreted, "dying without heirs or issue living at the time of the death" of the first taker; and thus this mischief stands corrected. But the act expressly provides that the rule of construction therein contained shall not extend to any will executed before 15 January, 1828. Consequently, it does not operate on this will, which was made in 1801.
PER CURIAM. Affirmed.
Cited: Weeks v. Weeks, 40 N.C. 116; Gilson v. Gilson, 49 N.C. 427;Buchanan v. Buchanan, 99 N.C. 312.