Picot v. . Armistead

We are called upon to put a construction on the (230) last will of Peter O. Picot. We are of the opinion, first, that on his death his wife was tenant for life of the real and personal estate, remainder to the two children, and that these estate were subject to be changed and altered on the contingency of the subsequent marriage of the widow. The childin ventre sa mere (Elizabeth) was to be considered a child inesse and living at the testator's death. Doe v. Clark, 2 H. Blac., 379; Mogg v. Mogg, 1 Mer., 654; Trower v. Butts, 1 Sim. Stu., 181; 1 Powell on Dev., 326 (marginal page Jar. Ed.). Secondly, the contingency happened — the widow married the defendant Armistead, and then by force of the executory devise the wife took a moiety absolutely in the real and personal estate. "The other half" (in the words of the will) was to go to "his child or children living at his death." Thirdly, one of the testator's children (Elizabeth) died before the marriage of her mother with Armistead and before she arrived at the age of twenty-one years or married. The defendants claim the share (which would have belonged to Elizabeth if she had lived) under this clause in the will: "If my child or children should die before they arrive at the age of twenty-one or marriage, then I givetheir estate to my wife for life," etc. The complainant claims the said share, contending that there were cross remainders between him and his sister by implication. We are of opinion that the defendants have no right to the said share of the deceased child by force of the above-mentioned limitation in the will. For the testator intended that the moiety of his estate which he had given to his children should go over to his wife for life, etc., only on the event that both the children died before twenty-one years of age or marriage. These words, "die before they arrive at the age of twenty-one or marriage, then I give their estate to my wife for life," etc., connected with the fact that the surviving child is entirely omitted in the clause creating the ulterior limitation, go strongly to prove that such ulterior limitation was not to take effect during the life of either of the children.

Fourthly, was there among the children a cross limitation (231) by implication? We think that there was not. The contingent executory devise to the children of a moiety of the testator's estate on the event of the marriage of the widow became vested on that event taking place. If the moiety to the children did not vest then, we would ask when could it ever vest? We think that it vested then, subject to be divested on the death of all the children before the age of twenty-one or marriage. Elizabeth being a child in law living at the death of the testator, the contingent executory devise of one-fourth to her on her death was transmitted by the law to her representatives. And on the marriage of the widow it became vested in the said representatives subject to be divested and go over on the event that all the children died before twenty-one and unmarried. The last event has not arrived, and it may never arrive. Why, then, take from the representatives of Elizabeth her share and turn it over to Julian? If Julian should die before twenty-one or marriage, then and not till then will the representatives of Elizabeth be compelled to give up her share to the ulterior devisees and legatees. To introduce cross remainders in such a case as this would be to divest a clear gift to Elizabeth upon reasoning merely conjectural; for the argument that the testator could not intend the retention of the property by the respective devisees to depend upon the prescribed event happening to the whole, however plausible, scarcely amounts to more than conjecture. 2 Powell on De., 625 (Jar. Ed.). That such an executory devise as this became a vested interest immediately on the event happening, and that there was not a cross limitation by implication among the children on the death of either of them has been expressly decided by Lord Alvanley, master of the rolls in Machell v. Winter, 3 Ves., 236, and although overruled by the chancellor on appeal (3 Ves., 536), he still held to his opinion (see Booth v. Booth, 4 Ves., 402). Afterwards, a case like the present in all its points (Skey v. Barnes, 1 Mer., 334) came on for a hearing before Sir William Grant. He held that the bequests vested immediately and that the share of the deceased child belonged to her representatives, subject to be divested and go over on the event of all the children dying before twenty-one or marriage. Mr. Jarman says, in his (232) edition of Powell on Devises, 630, that the case of Skeyv. Barnes may, it is conceived, be considered to have fixed the rule of law on this important subject. The case of Scott v.Bargeman, 2 P. W., 68, was decided in favor of the surviving child on the supposition that the shares of the two deceased children were not absolutely vested. And Lord Rosslyn decided the case of Machell v. Winter, 3 Ves., 536, on the same notion, that the shares of the two grandsons, who died under twenty-one, were contingent and not vested estate. All the chancellors in England who have said anything on the subject admit that if the legacy or devise is once vested it will go to the representatives on the death of a child in such a case as this, and the surviving child would not take by way of cross limitation by implication.Davis v. Shanks, 9 N.C. 117, appears to be in collision with the decision we are now about to make. That case does not appear to have been argued, and the court in giving their opinion seem to have gone on decisions governing devises to several as tenants in common in tail, with a remainder over in fee to a third person on the event of all the tenants in tail dying without issue. In such a case cross remainders between the tenants in tail hold of necessity. The testator has shown an intention to disinherit his heirs, and he has declared in his will that the ulterior devisee in remainder shall not take anything in the land until all the tenants in tail shall die without issue. If, then, one of the tenants in tail die without issue that interest will go to the surviving tenants in tail by way of cross remainder by implication.Clacke's case, Dyer, 330; Holmes v. Meynell, Sir T. Ray., 452;S. c., 2 Show., 135; Gilbert v. Witty, Cro. Ja., 655. These are the cases relied on by the court in Davis v. Shanks to support their decision. But when we come to examine these cases we discover that they relate to quite a different subject from that which was then to be tried and decided and that they do not govern the case which was then before the court. All the cases relied on in the decision of that case related to the rule creating cross remainders between tenants in tail and had no bearing (233) on a case like this.

Fifthly, the plaintiff is the sole heir and representative of his sister as to her real estate, and the personal estate of the child Elizabeth must go to her administrator to be distributed among her next of kin, who are her brother, Julian, and her mother, the present defendant. These representatives take the estates as above described subject to be divested and go over to the ulterior remainderman on the death of Julian under twenty-one and unmarried.

Perhaps the parties will be satisfied with this declaration and adjust the matters in dispute between themselves. But this Court will not take the accounts until an administrator of the deceased child be made a party.

By consent the cause was remanded to the court below.

Cited: Coffield v. Roberts, 35 N.C. 278.