Does the forfeiture of all of Buford D. Corl’s beneficial interest in his 'father’s estate destroy the contingent interests limited after his life estate? The court below was of opinion that the inquiry should be answered in the affirmative. The law is otherwise. Note, Ann. Cas., 1917A, 902, et seq23 R. C. L., 560-561.
True, at the early common law it was said every remainder requires a particular estate to support it, and a contingent remainder must vest during the continuance of the particular estate, or eo instanti that it determines. Power Co. v. Haywood, 186 N. C., 313, 119 S. E., 500. The determination of the particular estate, therefore, by surrender, merger, tortious alienation, forfeiture or otherwise, prior to the happening of the contingency upon which the remaindermen could take, would defeat the remainder for want of a particular estate to support it. Bond v. Moore, 236 Ill., 576; Lumsden v. Payne, 120 Tenn., 407, 114 S. W., 483, 21 L. R. A. (N. S.), 605. The rule was of feudal origin, based on the philosophy of feoffment, livery of seizin, etc. 23 R. C. L., 559. But with the invention of intervening estates to trustees to preserve contingent remainders (2 Blk. Com., 172), and later by statute (8-and 9 Yiet.), the law of conveyancing underwent quite a change in England, and much of the prior learning on the subject was confined to simple deeds or became obsolete. Fearne on Contingent Remainder, secs. 316-324; Preston on Conveyancing (3d Ed.), 399; 2 Washburn Real Property, 263; 1 Tiffany Real Property, see. 123; Williams Real Property (6th Ed.), 282. See, also, Payne v. Sale, 22 N. C., 455.
*10In the present ease, it will he observed, the testator left all of Buford’s interest in trust, and for life only (except the residuum), while George was given his outright, absolutely and in fee simple. Evidently the testator regarded George’s business sagacity better than Buford’s, and subsequent events seem to have justified this estimate. Whitehurst v. Gotwalt, 189 N. C., 577, 127 S. E., 582.
So, in providing in item fourteen that all forfeited interests should go to George E. Corl “in fee simple, discharged from any trust,” it was not thereby intended to enlarge the forfeited interest, but to strip the interest so forfeited- — and only such interest — of any trust and to give it to George, to the extent that such interest- was capable of being bequeathed or devised, as his other bequests and devises in the will, absolutely and in fee simple.
In other words, the intention of the testator was to take from any beneficiary who should contest the validity of his will, the interest intended for him or her thereunder, and to give such interest to George, with the added provision that the interest of any contestant should go to his son George, “discharged from any trust hereinbefore created for his or her benefit;” i.e., discharged from any trust previously created in the will for the benefit of any who should contest the validity of the will.
In the interpretation of wills, the intent of the testator is to- prevail, unless contrary to public policy or some positive rule of law. Jolley v. Humphries, 204 N. C., 672, 169 S. E., 417; Ellington v. Trust Co., 196 N. C., 755, 147 S. E., 286; McCullen v. Daughtry, 190 N. C., 215, 129 S. E., 611.
Let the cause be remanded for judgment accordant herewith.
Error.
Devin, J., took no part in the consideration or decision of this case.