Citation Numbers: 186 N.C. 313
Judges: Adams
Filed Date: 10/24/1923
Status: Precedential
Modified Date: 7/20/2022
It seems to be admitted that the controversy depends primarily upon the third and twentieth items of the will, and that these
On the other hand, the plaintiff argues that the entire controversy may easily be determined by applying to the facts an established legal principle, namely, that William James Boylan, immediately upon his birth, acquired a heritable interest in the estate, which, under the canons of descent, passed upon his death to his sister, Josephine, as his heir at law.
It will be seen, therefore, that in its ultimate analysis the appeal presents this single qriestion: What interest in the land, if any, was acquired by William James Boylan? Was it a vested interest or one contingent upon his surviving the life tenant ? If it was vested and descendible, of course, it cannot be construed as coming within the residuary clause, as contended by the appellants.
What, then, is a vested and what a contingent remainder ? An estate in remainder is an estate limited to take effect in possession immediately after the expiration of a prior estate created at the same time and by the same instrument. 23 R. C. L., 483, sec. 5. Discussing the distinction between vested and contingent remainders, Eearne says: “In short, upon a careful attention to this subject, we shall find that wherever the preceding estate is limited, so as to determine on an event which certainly must happen, and the remainder is so limited to a person in esse, and ascertained, that the preceding estate may, by any means, determine before the expiration of the estate limited in remainder, such remainder is vested. On the contrary, wherever the preceding
Guided by the foregoing authorities and others which are not cited, we are unable to concur in the argument that the vesting of the remainder was dependent on the decease of the life tenant during the life of the remainderman. In our opinion, the words, “to my grandson, William, . . . during his natural life, and at his death to his eldest son,” are not susceptible of this interpretation. One of the prevailing rules of construction is that adverbs of time, or adverbial clauses designating time, do not create a contingency in a devise, but merely denote the time when the enjoyment of the estate shall commence. Brinson v. Wharton, 43 N. C., 80; Rives v. Frizzle, ib., 237; DeVane v. Larkins, 56 N. C., 377; Elwood v. Plummer, 78 N. C., 392; Harris v. Russell, 124 N. C., 554. See cases collected in L. E. A., 1918-E, 1098. Accordingly, we regard it unquestionable that William Boylan (son of William M. Boy-lan), by virtue of the devise in the third item of the will, immediately upon the death of John H. Boylan, unmarried and without issue, took an estate in the land for his natural life, and that the remainder which was contingent theretofore (the remainderman not being in esse) became-vested in William James Boylan at the moment of his birth. For this reason, section 1737 of the Consolidated Statutes, which pertains to contingent limitations, is not applicable to the facts. If William Boylan, the life tenant, had died before the birth of the remainderman, a very different question would have arisen, involving a limitation to become effective at the time of his death. It will be noticed upon examination that the decisions cited and relied upon by the appellants relate to such contingent limitations •— not to vested interests — and are principally influenced, if not entirely controlled, by the provisions of the statute to which we have just referred. We deem it unnecessary, therefore, to enter into an analysis of these decisions and to show wherein the principles upon which they were rendered may be distinguished from the principle by which we are controlled in the instant case.
In. Early v. Early, 134 N. C., 258, Mr. Justice- Walker remarked that the essential principle of the ancient law of inheritance was that the stock of descent could not be established except by actual seizin of the freehold of inheritance, but under the present law all that is required to constitute a sufficient seizin for the creation of a new stock of inheritance or stirpes of descent is that the person from whom the descent is claimed should have had, at the time of the descent cast, some right, title or interest in the inheritance, whether vested in possession or not; and, further, that the amendment was made in consequence of the decision in Lawrence v. Pitt, 46 N. C., 344. The same conclusion was reached in Tyndall v. Tyndall, ante, 272. The statute particularly relevant here is C. S., sec. 1654. It explicitly provides that when any person dies seized of any inheritance or any right thereto or entitled to any interest therein, not having devised the same, it shall descend under the prescribed rules; and rule 12 provides that every person in whom a seizin is required shall be deemed to have been seized if he have any right, title or interest in the inheritance. See, also, rules 1, 4, 5.
We have not overlooked the argument addressed by the appellants to the question of the testator’s intent to preserve the estate in all its subdivisions to the direct line of succession in his own family, or ignored any of the provisions in the will, or disregarded the rule which makes the testator’s intent a material element of construction; but we are not permitted to substitute a presumed intention which is at variance with .the obvious meaning of the language employed when construed in accordance with the established canons of construction. McIver v. McKinney, 184 N. C., 393.
We must, therefore, hold in the instant case that William James Boy-lan acquired a heritable interest in the land in suit, which, upon his death, descended to Josephine, his sister and only heir at law. This being true, upon the facts found, the plaintiff’s title is indefeasible, and the judgment rendered by his Honor in the court below is in all respects
Affirmed.