Administrator v. Webb, 5 N.C. 134, 1 Mur. 134 (1806)

June 1806 · Supreme Court of North Carolina

5 N.C. 134, 1 Mur. 134

The Administrator, de bonis non, with the will annexed of Richard Kay, deceased, vs. Webb and others.

Halifax.

Benjamin Edwards* Guardian of William E, Webb* an infant under the age of twenty one years, having notice of debts & demands against the estate of his ward, applied to the County Court of Halifax, wherein his guardianship had been granted, for an order to sell so much of the estate of his ward as might be sufficient to discharge such debts or demands, and the said Court in consequence of such application made an order particularly specifying that the • . • . , „ . ., „ said Benjamin might lor the purposes aforesaid, sell a tract of land belonging to his ward, lying in the county of Halifax and containing by estimation four hundred acres. Ed- ° * wards, in virtue of the premises, and of the act of Assembly in such case made and provided, exposed the said tract of land to public sale on six months credit; at which sale Richard Kay became the purchaser. Before Kay either paid the purchase money or received a title, to wit, in the year 1794, he departed this life, having previously made and published his last will and testament in writing, duly executed to pass his real estates, and thereby devised his property both real and personal to his sisters, who were his- heirs at law, subjects of the King of Great Britain, resident in England and aliens.

The purchaser of a tract of befóle'he i>ays,tlie purchase? money on tule, ÚLity. ^es'the’’ ’^s «re his heirs represénta-c,uise m°-nev those Wo take death, take n sui>-aña ^ burse the purchase mo-represent:!--' thelañd’be-border*oi the county court upou the appiica-guardian,'' poseíais, d®¿aar|(|"sa„ gainst iúb tat?, the made a paí "ant to the file<iior of having chase'mo-hurscd?de-Biurred to til© the

After the death of Kay, Edwards brought suit against Thaddcus Baines, Executor of Kay’s will, for the money aforesaid, and in Halifax Superior Court obtained judgment for the sum ofZ633 ISslltf. Thaddeus Baines J y ely mg soon afterwards, administratoin de bonis non, with tho will annexed of Kay, was granted to Sterling Marshall, who in the year 1799 paid to Edwards the amount of tlic said judgment, together with the sum of £39 18 8 costs of suit. — Webb, the ward, having afterwards arrived at the . . - age of twenty one years, and Edwards, his guardian having died, the Administrator of Edwards some time in the year 1803 came to a settlement With Webb, concerning the guardianship aforesaid, and in that settlement was included and fully accounted for the amount of the judgment a-tores aid received by Edwards.

j£ay was ¡.jje p0gSeggion of the said tract of land ai the time of his death. There was no actual occupancy of afterwards until the year 18 )3, wii n Webb entered upon ami became passes-pd ,f it; M srdiall, the Administrator tie bonis non, &c. having died, Administration with the will annexed of all and singular the goods and chattels, rights and credits, which were of the said Richard Any, unad-ministered’by the aforesaid Thaddcus Barnes and Sterling Marshall, was committed by Halifax County Couvt,to John Eaton, who being advised that it was doubtful whether the reaj (j{je (0 the said tract of land remained in Webb, or had and vested in the Trastees of the University of North Carolina, or belonged to the state ; and also advised, that whoever became entitled to it on the deatii of Kay, took it subject to the burthen of paying the purchase mo" ney aforesaid ; and as the estate which he represented had been compelled to pay the judgment for the said purchase money and costs of suit, that the person or persons entitled to the land ought to reimburse to him the said judgment and costs with the interest, or permit the said tract of land to be sold for that purpose in the first instance; filed a bill in the Court of Equity for Halifax district against the said William E. "Webb and the Trustees of the University of North Carolina, and therein prayed that the Attorney General of the State being attended with a copy of the bill, might appear and put in his answer thereto on the part of the State $ that the person or persons entitled to the lant might be decreed to pay to him the amount bf the a-ioresaid judgment and costs with interest, or that the lane might be decreed to be sold in the first instance for this purpose; and that all proper parties might be decreed to join in a conveyance to the purchaser under the said sale.

To this bill Webb demurred, and the complainant joined in demurrer. Seawell, the Attorney General, put in an answer on the part of the state, stating that he bad no knowledge of any of the facts set forth by complainant, and

! he condition is performed and her estate becomes absolute, Mary’s estate rt-seiubics the ancient fee-simple conditional at the common law ; the ms ment that issue was born to the donee, his estate in the land became absolute, the condition of the gift being perl’et mod. If then the participle *» Ha-rina;” be t.ken as a participle of past time, it must relate-to t me anterior to Mary’s death, within which she might have issue ; as a participle of tire present time, it must re* late tol'the time of Mary’s death. In no way can (he'gram* matk-al or vnigar meaning of this participle be construe^ to extend to time posterior to Mary’s death, much less to include such a quantum of time as twenty-one years subsequent to that event.

If the word having” did not determine with sufficient precision the time when the ulterior limitation was to vest, if at all, that time would be pointed out by the word “ then* used in tbs devise, It is not here used as an adverb of reference, otherwise the subsequent words'* and in that cast? would not have f cen used. It is here used as an adverb of time, and can be referable only to the time of Mary’s death. There seems to be no ground whatever to put this case upon the remoteum:; ol the second limitation ; it be. in;; dear in every way in which the words of the devisa can be const cued, that if the second limitation is to take either, it must be ut Mary’s death. In the case of Weakly vs. Rugg, 7 Term Rep, 322, the devise was to the testators *• daughter Anne, but if she should happen to dio without having child or children lawfully begotten^ then tti his daughter Mary, and after her to such child or children as she should happen to have lawfully begotten.” Amis married and had three children, who as well as the husband died in Anne’s life time. The question was, whether Anne was entitled to the whole interest in the estate devised ? And the court held that as Anne had had issue, the condition, was performed and the estate vested absolutely in her upon that event. The case differs in no rs-gpect from the casfe before the Court, except in the birth óf issue. The devise in each is to a favorite daughter ; the wor^8 expressing the contingency upon which the limitation over was to vest, are in substance the same; one testator using the words “ without having child or children law, fully begotten,” the other “ without having heirs,” evidently meaning heirs of the body. If therefore in the case of Weakly vs. Rugg, it was held that Anne, the first taker, was entitled to the whole interest in the estate devised, because she had had issue, she surely would not have been thus entitled, if she had had no issue ; and Mary Long Davidson, having had no issue, the whole interest never vested in her absolutely, but upon her death vested absolutely in the ulterior devisees. — But

By the Court

't he limitation over to the nephew’s and nieces is too remote, and therefore void.