Hood v. McElvain, 215 N.C. 568 (1939)

May 3, 1939 · Supreme Court of North Carolina
215 N.C. 568
MRS. JOSEPHINE MILLER HOOD v. MRS. MARY MILLER McELVAIN and Husband, C. C. McELVAIN, MRS. ROBERTA MILLER DEHNE and Husband, THEODORE DEHNE, PAUL E. MILLER, SAMUEL G. MILLER, FRANCES I. MILLER, ROBERTA MILLER, JULIAN S. MILLER, JR., and ROBERT MILLER

MRS. JOSEPHINE MILLER HOOD v. MRS. MARY MILLER McELVAIN and Husband, C. C. McELVAIN, MRS. ROBERTA MILLER DEHNE and Husband, THEODORE DEHNE, PAUL E. MILLER, SAMUEL G. MILLER, FRANCES I. MILLER, ROBERTA MILLER, JULIAN S. MILLER, JR., and ROBERT MILLER.

(Filed 3 May. 1939.)

1. Wills § 33a—

A bequest of personal property with provision for defeasance if the legatee should die childless, with limitation over of the defeasible fee, vests the absolute title in the legatee, the limitation over being void.

2. Wills §§ 33c, 33f—

A devise of realty with provision that if the devisee dies childless the land should revert to testator’s grandchildren “except so much as she may wish to will to Christian benevolence” conveys a defeasible fee to the devisee, the power of disposition being restricted.

Appeal from Sinclair, Emergency Judge, at April Term, 1939, of MeckleNburg.

Modified and affirmed.

Action under tbe Declaratory Judgment Statute to construe tbe will of R. G. Miller. From judgment for tbe plaintiff defendants appealed.

Fred G. Hunter for plaintiff.

J. H. McLain for defendants.

DeviN, J.

By tbis appeal tbe Court is called upon to determine tbe rights of tbe parties under tbe following clause of tbe will of R. G. Miller:

“In case Josephine G. Miller should die childless, I will that her share of my estate named above shall revert to my eight grandchildren except so much as she may wish to will to Christian benevolence.”

Previously in bis will tbe testator bad given to bis daughter Josephine (now tbe plaintiff Josephine Miller Hood) certain real and personal property. Tbe later disposition of tbis property, in tbe event she should die childless, does not affect tbe validity of tbe bequest of personal property previously given her, and as to that she takes it freed of any condition. Nixon v. Nixon, ante, 377. Tbe court below properly so held.

As to tbe real property devised, however, it is apparent that only a defeasible fee is conveyed (Whitfield v. Garris, 134 N. C., 24, 45 S. E., 904; Daly v. Pate, 210 N. C., 222, 186 S. E., 348; Merritt v. Inscoe, 212 N. C., 526, 193 S. E., 714), and that plaintiff’s title thereto is subject to be defeated, with limitation over, in tbe event she should die childless. Tbe power of disposition given in tbe quoted clause of tbe *569will is not unlimited but is restricted to conveyance by will to Christian benevolence. Hampton v. West, 212 N. C., 315, 193 S. E., 290. In this respect the judgment of the court below must be modified to conform to this opinion.

Modified and affirmed.