Doe on the several demises of Reeves v. Craig, 60 N.C. 209, 1 Win. 209 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 209, 1 Win. 209

Doe on the several demises of HUGH C. REEVES and WM. CURRIE vs JAMES N. CRAIG.

A devi-~ a -.ract, of land to the .oa or" the testator “ it' he be living and returns ti> the county of Orange.”»? a giO oí the ¿aid cn condition that ths son returns to Orange as Lis domicil, especially vln-n cther provisions of the will seem to show \Lo testator's expecUiUo';-. a; d desire that the son should reside there after testator's decease.

This was an action of ejectment tried before Gii.uam, j. at the So-iug Tern: of Grange Superior Court, 3 864.

Hugh Currie oi' Orange count}* made hi.- will in 1849 where by lie devised, as follows : 1 give and devise to my son William Currie, if lie be living and returns to the County of Orange, the plantation whereon I now live, containing. Ac., but if my son is dead or does not return to the County of Orange, ¿ give and devise the said tract of land, to my grandchildren Mary Currie, .Betsey Currie, &c.; the said grandchildren were the children of William. By another clause of hi3 will the testator directed his slaves to be sold and gave one-third part of the price to the children-of his son "William. The testator died in 1851, and his will was proved in that year, William Carrie had been absent from this State for several years before 1849, and did not return to this state until in .the year 1860 when he came to Orange county for the purpose as he said of disposing of his land. He made a deed of bargain and sale for the land to Hufli C. Reeves one of the lessors of the: plaintiff, and after remaining in Qiange county about three weeks,, left the state and has not returned to it since. The'testators grandchildren above named hy¿l always resided in Orange county. Tbo defendant in the action claimed under them. The jury found a special vci’dict to the effect above stated and the judge being of opinion with tbo plaintiff a verdict was entered accordingly and judgment rendered thereon from which the defendant appealed.

(iraham for the plaintiff.

Phillips for the defendant.

Mani-.y, J.

The caso depends upon the construction oí the devise to William Currie : and the question is what is the true meaning and intent of the condition upon which his takifg the estate :n made to depend. ,

Wo are satisfied (iie return to the county ofhis son which the testator had hi his mind, tras a return as c. resident— othnwise it is difficult, to conceive why he should have stipulated for a return at ai). If he had meant it as a personal advancement, it would have been more germnin to his object to have given it absolutely upon the condition of his surviving him.

The main object of th<j tos hi tor, seems to have been to make provision for lib w n‘s iam ly. This he desired to do through the son, for reas.-i s oi mutual.benefit; and therefore he'stipulated fuf his return to the county;,for his return to it as his domicil; -whereby his children would become subject to ho caro, and be be in a condition to attend to their education and maintenance. It could not have entered into bis contemplation that his son might come into the county, make sale of Ms estate, and then return with the proceeds to his former retreat. Such a return would not at all advance what wo have supposed to be the principal object of the testator.

In further support of the view we h^ve taken j it may be remarked that the testator in making provision for this branch of-his family, gives the land to the son, and the personalty to his children, suggesting by this arrangement, an expectation and desire, that there should be a common possession and'enjoyment.

The question as to the time within which the condition.' should bo performed, we have not thought it necessary to consider. Our opinions upon the first point, dispose of the case, and-we decline going into the other. *

The judgment of the Superior Court should be reversed and a judgment entered for the defendant.