Jarvis v. . Davis

5 S.E. 227, 99 N.C. 37

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

Merrimon, J.,

(after stating the case). We are of opinion that in no proper view of the complaint and the deed to be interpreted, taken in connection therewith, is the plaintiff entitled to recover, and therefore his assignment of error is groundless.

It appears from the premises and the habendum clause of the deed, that the chief and leading purpose of the maker of it was to make a provision for his married daughter therein named, and such child or children as she might at her death leave surviving her. The words “and the lawful heirs of her bodj'r,” appearing in the premises, under the statute, (The Code, § 1329,) are to be taken as implying her children, nothing to the contrary appearing, and nothing does so appear. The habendum clause expressly provides that she shall take an estate for her 'own life, and in legal effect, with remainder in fee to her children surviving her. Although it is not in terms provided that the children shall have the remainder in fee simple, the statute (The Code, § 1280,) enacted before the deed was executed, provides that “ when real estate shall be conveyed to any person, the same shall be held and construed to be a conveyance in fee, whether the word ‘ heirs ’ shall be used or not, unless such conveyance shall in plain and express words show, or it shall be plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity.”

There is no provisiqn in the deed that in terms or effect fairly indicates a purpose to convey to the surviving children a less or other estate than the remainder in fee. Indeed, no provision is made to apply beyond surviving children. Hence, the daughter having died leaving a child surviving her, the deed operated to convey that estate to the surviving child, thus serving the chief purpose of its maker.

The deed, however, further provides, that the husband named in it shall have an estate in the land for his own life, if he should survive his wife and the latter should die leaving no children surviving her, “ provided that the said C. L. Davis (the husband) keeps the fences and ditches in good repair and condition.”

This condition, if it be such, is not expressed with clearness and precision, but treating it as sufficient in substance as a condition that might be effectual, it applied only to the life estate provided for the husband, and not to the estate of the wife and children. It looked to the return of the land to the grantor in good condition as to the fences and ditches. He did not contemplate or expect its return, if his daughter should die leaving children surviving her.

The condition does not refer in terms or by necessary implication to the estate of the wife and children by an unusual condition, not dependent on their acts, but the acts of one whom they might not be able to control. It appears in the separate and distinct clause of the deed which provides a life estate in the land for the husband, and clearly applies to it. Moreover, it is a condition subsequent and intended to defeat the estate. Such conditions are not favored by the law, and are construed strictly. It should appear clearly that they apply to the estate intended to be affected and defeated by them. They cannot be extended unless by the strongest implication or necessary inference.

The contingency upon the happening of which the husband would have taken a life estate for his life in the land under the deed never happened, and can never happen, because the wife died leaving a child surviving her. This child, as we have seen, took the estate in remainder in fee simple, unaffected by the condition mentioned.

Nor did the contingency happen in which it was provided that the tract of land should “ go to the. last will and testament of said John C. Jarvis,” (the father and grantor,) or revert to him, because the husband and wife did not both die, the latter leaving no surviving issue. She died leaving a child surviving her, who took the absolute estate in remainder as indicated.

It appears that the child afterwards died leaving “ no issue capable of inheriting, nor brother, nor sister, nor issue of such,” but leaving its father surviving it. The inheritance vested in the latter under the Statute of Descents (The Code, § 1281, Rule 6). And for the reasons already stated, he thus took the inheritance unaffected by the condition mentioned. By virtue of the statute, he took under his deceased child, and he did not take under the deed. As the estate of- the child was not affected by the condition in its lifetime, so it was not after it came to the father, under the statute.

Affirmed.