Black v. McAulay, 50 N.C. 375, 5 Jones 375 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 375, 5 Jones 375

JUDITH E. BLACK v. HUGH McAULAY.

A limitation over, upon the contingency, that the first taker “ shall die under age, or without leaving children,” fails, if the first taker arrives at full age, although he may afterwards die without leaving children.

A limitation over of property, in this State, after an indefinite failure of issue, by a will made in another State, is too remote, as the common law is presumed to prevail in such State.

AotioN of detinue, tried before Dice, Judge, at the Spring Term, 1857, of Cabarrus Superior Court.

The action is brought for several slaves, the issue of a woman, Letitia, who was bequeathed by Mary Grier to her daughter, Adeline, in the following words :

“ I give to my daughter, Adeline, my negro woman, Letitia, with her future increase, but should she die before she arrives at the age of twenty-one years, or without leaving issue, I give the said woman, Letitia, to my daughter, Judith.”

The testatrix lived in Alabama, and the will was made and probated in that State.

Adeline, the above named legatee, intermarried with the defendant, Hugh McAulay, and died in 1848, in possession of the slaves, in question, long after arriving at the age of twenty-one, but without leaving issue. The defendant held the slaves jxore mariti. It was insisted, 1st, that the title of Adeline, to the slaves in question, became absolute on her arriving at twenty-one years. 2nd. It was further insisted, that as this limitation is contained in a will made in the State of Alabama, where it is presumed that the common law prevails, Mrs. Black’s title is put upon a contingency too remote, being an indefinite failure of issue.

The legatee, Judith, intermarried with Samuel E. Black, who died during the pendency of the suit, and it was then carried on in her name. She claims that her sister having left no issue, although she lived beyond the age of twenty-one, by the contingent limitation, the property became vested in her.

Osborne, for the plaintiff.

H. Barringer, Jones and Boyden, for the defendant.

Pearson, J.

It is settled, that when a limitation over is made, “ if the taker of the first estate, dies before arriving at full age, or without children, the word “ or” is construed to mean “ and,” so that the limitation over does not take effect, unless both contingencies happen, and the first estate becomes absolute upon the happening of either; 2 Eearne, 97, Jarman on Wills, 444.

Our case is stronger; for treating the -word “ or,” as used in the disjunctive, when the first contingency happened, that is, when Adeline arrived at the age of twenty-one, her estate became absolute, as the other contingency — her death “ without issue,” taken alone, made the limitation over too remote, according to the principles of the common law.

There is no errorr.

Pee Curiam. Judgment affirmed.