Hollowell v. Kornegay, 29 N.C. 261, 7 Ired. 261 (1847)

June 1847 · Supreme Court of North Carolina

29 N.C. 261, 7 Ired. 261

DEN EX DEM. WILLIAM HOLLOWELL vs. GEORGE KORNEGAY.

A. by will in 1786, devised to his son R. a tract of land and then proceeded as follows: “ And my desire is, if my son R die without heir lawfully begotten of bis body, for it to be sold, and equally divided between his own sisters.” Held, that the limitation over was too remote, and that estates tail having by the Act of 1784 been converted into fee simple estate, the son R. took an absolute estate in fee simple in the land devised.

The case of Saunders v. Hyatt, 1 Hawks 247, cited and approved.

Appeal from the Superior Court of Law of Wayne County, at the Spring Term, 1847, his Honor Judge PeaesoN, presiding.

The premises were devised by Richard Martin in 1786, as follows : “ I give to my son Richard my dwelling plantation ; only my wife to live on one half of the land, during her widowhood and no longer. And my desire is, if my son Richard die without heir lawfully begotten of his body, for it to be sold, and equally divided between his-own sisters.” The wife died, and then Richard died in 1843, without having had issue. The defendant claims under conveyances in fee made by Richard, the son, in 1798. The testator left several daughters, and they all died before their father Richard, except Sarah Flowers, who is the lessor of the plaintiff in one count of the declaration. The testator appointed two executors, who died before 1843, and after the death of Richard, administration with the will annexed was taken out, and the administrator sold and conveyed the premises in fee to William Hollowell, who is the lessor of the plaintiff in the other count of the declaration. Upon these facts, which were agreed between the parties, the Superior Court was of opinion, that the title was in the defendant, and from a judgment for the defendant the plaintiff appealed.

J. H. Bryan, for the plaintiff.

Badger, and Mordecai,. for the defendant..

'Ruffin, 0. J.

The judgment must be affirmed. There is nothing in the will to tie up the period for the limitation over to take effect, to lives in being- and 21 years after, so as to make this an executory devise. “ His own sisters” only means “his sisters,” and cannot be understood as intending a benefit to the sisters 'personally, but only as vesting the interest in them. The case of Saunders v. Hyatt, 1 Hawks 247, is directly in point. The wills are almost literally the same. The only difference is, that the devise by Saunders was to his son, “ and if he die without any heir lawfully begotten of his body, the testator orders the land to be sold and the proceeds divided among his sisters.” But that difference is entirely immaterial, as in each case the disposition over is after the .death of the first taker “ without heir lawfully begotten of his body,” that is, of a remainder after an estate tail in possession ; which the act of ’84 makes void. The fee vested in Richard, and is now in the defendant. The decision of this point renders it unnecessary to consider the others, in respect to the power of the executors to sell under this will, ánd that of the administrator under the act of 1836.

Per Curiam. Judgment affirmed.