Isler v. . Whitfield

61 N.C. 493

Opinion

Battle J.

We are of opinion that the judgment rendered in the court below upon the case agreed is erroneous and must be reversed. The devise of the land in question to all the testator’s grandchildren is an executory devise alternative to that to the testator’s grandsons, Hazard Whitfield, Cicero Whitfield and Lewis Whitfield, or the survivor of them, both depending at present upon the death of the first devisee, B. Franklin Whitfield, “leaving no heirs of his own body.” Until the defendant B. Franklin Whitfield shall die leaving no children or other descendants, it will necessarily remain uncertain whether the estate in the land will vest in the first or second class of devisees. It follows that the conveyance made by the defendant, though supported by the deeds made to him by Hazard and Cicero Whitfield, the survivors of the first class of executory devisees, cannot transfer a title free from the claim of the testator’s grand children, who compose the alternative class’of executory devisees. See Fearne on Remainders 373; Winder v. Smith, 2 Jones, 327.

Judgment reversed and judgment for the plaintiff.

Per Curiam. Judgment reversed.