Den on dem. of Brown v. Brown, 25 N.C. 134, 3 Ired. 134 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 134, 3 Ired. 134

DEN ON DEM. OF WILLIAM BROWN vs. MARTHA BROWN AND OTHERS.

December 1842.

In a devise, before the act of 1827, (Rev, St. c. 122, s. 11,) 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 the remainder limited upon such a contingency was void. .

The cases of Sutton v Wood, Oonf. Rep. 202, and Davidson v Davidson, 1 Hawks 16d, cited and approved.

Appeal from the Superior Court of Law of Hertford County, his Honor Judge Bailey presiding.

On the trial oí this ejectment the following iacts were agreed upon. Josiah Brown, Sen. died in the year ISO 1, having duly published his last will and testament in writing in - due form to pass real estate, which will was subsequently admitted to probate in the proper court. In the said will are the following clauses: “It is my will and desire, that my loving wife, Mary Brown, have'the use of one half of all my lands in Hertford county, and the other p'art to my son, Josiah Brown, and after my wife’s decease or marriage, I give and bequeath to my said son Josiah, the whole of the remainder of my lands, to him and his heirs forever.” Also, “ it is my will and desire, my. loving wife, Mary Brown, have the use of all the remaining part of my property of every kind during her natural life or until marriage, and after her decease of marriage, to be equally divided between my three youngest children, Mary, Priscilla and Martha Brown; and provided, nevertheless, if any of my sons aforementioned should die without lawful issue, that then, in such case, I give to my three youngest daughters, Mary, Priscilla and Martha Brown, the lands I have bequeathed to such deceased, in as full and ample a manner, to all intents ánd purposes, as if the first bequest had been to them the said Mary, Priscilla and Martha, to be equally divided among them.” The land in dispute was admitted to be that devised in the first clause aforesaid to Mary Brown for life, and after her decease or marriage, to Josiah Brown, one of the sons of the testator. It was further admitted that the said Mary departed this life about two years ago, before the bringing of this action, never having married, and that Josiah Brown had died before the said Mary, and without leaving or having had any issue. It was further admited, that if Josiah Brown, the devisee, had an absolute estate in the said land, then the lessor of the plaintiff, who claimed under the said Josiah Brown by purchase, was entitled lo recover, but if the limitation in the said will to Mary, Priscilla and Martha Brown was not too remote, then the lessor of the plaintiff was not entitled to recover.

The jury found in favor of the lessor of the plaintiff, subject to the opinion of the court upon the foregoing case agreed ; and the court, being of opinion that the limitation to the said Mary, Priscilla, and Martha, was too remote, gave judgment in favor of the plaintiff. Fromthis judgment the defendants appealed.

Bragg for the plaintiff.

No counsel for the defendant.

Ruffin, C. J.

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 the case of Campbell v Harding, 2 Rus. &. Myliie, 390, and the doctrine re-asserted. In this State, the same construction has prevailed. Sutton v Wood, Conf, Rep. 202. In the case of Davidson v Davidson, 1 Hawks, 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 time1 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 any thing to take the ease 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 the 15th of January, 1S28. Consequently, it does not operate on this will, which was made in 1801.

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Per Curiam. Judgment affirmed.