Cox v. Marks, 27 N.C. 361, 5 Ired. 361 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 361, 5 Ired. 361

SAMUEL COX & AL. vs. H. W. MARKS & AL.

A. bequeathed as follows: “I do lend to B’s. fopr children C. D. E. & F. all my estate, real and personal” and then directs that the estate shall be kept together until C. arrives at 01 years, and then to be equally divided among the children, to them, their heirs and assigns forever — Held, that the word lend did not tie up the estate to the time of the death of the children.

A. bequeaths certain personal estate to four brothers and sisters, to them, their heirs and assigns, and then added: “ If either of them should die without any heir in marriage, then their legacy to their own brothers and sisters.” Held, that the remainder over was too remote, and therefore void.

Appeal from the Superior Court of Law of Mecklenburg County, at a Special Term held in May, 1845, his Honor Judge Pearson presiding.

This was an action of detinue, brought by the plaintiffs as administrators of one John Cheek to recover certain ' slaves. The principal question made in the case was upon the construction of the will of Silas Cheek, which was made in 1808, and of which the following are the material parts. “I do lend to Mary Smart’s four base born children, namely, Robert T. Smart, Sarah B. Smart, Rebecca Armstrong, and John S. Smart, all my estate, real and personal. And - it is my will, that my estate should be kept together until the said Robert T. Smart arrives to twenty-one years of age, and then equally divided, share and share alike with the said four children, to them and their heirs forever, and that said children be raised well, and given good learning. If either of them should die without any heir in marriage, then their legacy to their own brothers and sisters, and the profits that should arise, from this estate, while kept together, as yearly incomes, to be laid out to the use and benefit of the said children.’-’ The negroes in controversy were admitted to be those, or the descendants of those, owned by the testator and intended to be passed by the will. It was admitted, also, that, on the coming of age of Robert T. .Smart, about the year 1823, the negroes were divided among the devisees according to the terms of the will, and they so held them until the death of John S. Smart, who died in May, 184.4, without having had children. The defendants then took possession of his part of the negroes, and still hold them, it was agreed, that if, under the construction of the will, the negroes vested absolutely in the plaintiffs intestate (he being the John S. Smart mentioned in the will) then they were entitled to recover. But they were not entitled to recover, in case the court should be of opinion that, on the death of John Cheek, the estate went over, by way of executory devise, to the defendants, who are his sisters.

The court instructed the jury, that the limitation over in the will of Silas Cheek was too remote, and that the absolute estate vested in the plaintiffs. In pursuance of this instruction, the jury found a verdict for the plaintiffs, and, judgment being rendered thereon, the defendants appealed.

Boyden for the plaintiffs.

Alexander and Osborne for the defendants.

Daniel, J.

Is the executory devise of John S. Smart’s share over to his brothers and sisters, upon an event too remote, and therefore void'? This is the question now for our decision. The word lend, made use of by the testator in the beginning of his will, which we are requested by the counsel to notice, whentaken in connection with the phraseology of the whole clause in question or the whole will itself, does not denote an intention in the testator to tie up the estates devised and bequeathed, to the time of the death of any of the several legatees or devisees. What the testator’ might have meant by the word lend, in case any of the children had died before the time of division, it is now useless to enquire, because it is clear, that he intended they should have, in the first instance, an absolute property in their several shares, after the division should take place. John S. Smart outlived the period of division. He, therefore, took his share absolutely; which, on his death, would go, the land to his heirs, and the personal estate to his administrator, in case the limitation over to his brothers and sisters is void in law. “ If he should die, without any heir in marriage,” is the event, upon which the estate of John S. Smart is, by the terms of the will, to go over to his brothers and sisters. The word heir is nomen generalissimum, and may include all kinds of heirs. That word by itself, therefore, will clearly make the executory devise over to the brothers and sisters rest on an event too remote, and therefore void. Brantley v. Whitaker, 5 Ired. 225, And if we take the whole sentence together, it cannot, by any common sense interpretation be construed to mean, if he die without leaving children or leaving issue, then over. It was contended by the counsel, that ,! heir in marriage” meant children, so as to tie up the event within the proper period. But that is inadmissible, since it would exclude grand-children of the first taker; and certainly the testator did not mean, that, if one of the devisees had a child, and that child had issue and died in the lifetime of the first taker, that the estate should go over to the brothers and sisters of the first taker, and exclude the issue of the dead child. The most extended construction that we can give the sentence, in favor of the defendant, is the following: If he die without heirs of his body born in lawful wedlock, then over. And we know, that such words would only reduce the estate in fee in the land, which John S. Smart had vested in him by the former part of the will, to an estate tail, and would leave the personal estate just where it was ber fore, to wit, absolute in him and his administrators; as it is a rule of law, that any words in a will, that will create an estate tail in the land, will, when used in a bequest of chattels, create an absolute interest in them to the legatee. We therefore are of opinion, that the judgment must be affirmed.

Per CuRiam, Judgment affirmed.