Misenheimer v. . Bost

11 S.E. 279, 106 N.C. 10

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

MekeiMON, C. J.

after stating the case: It seems to us very clear that the testator, in disposing of his property to his wife and children, did not have in view at all, or expect, the death of each and all of them before that of himself, nor did he intend that the property bequeathed and devised to his children should vest absolutely in them immediately upon his death, if they survived him. It is very improbable that he thought that his wife and all his children — several persons — might die before himself, and, therefore, he provided for such contingency. Besides, that he did not; appears strongly in that he appointed his wife executrix of his will, thus indicating his expectation that she would survive him; and further, in that he directs that at the death of his wife the land devised to her for her life should go to his children; and'further, in that he devised to his wife a certain quantity of land, in the contingency that she should, after his death, marry a second time; and further, in that he bequeathed and devised all of his property, both real and personal, to his wife and children as long as she continued to be his widow. He scarcely thought of the contingency of the death of his wife before his own and that of all his children and that they all might die before him. We think, therefore, that the provisions of the will have reference to the time of the death of- the testator and contingencies mentioned that might happen after that time.

By the clause of his will first above set forth, the testator puts his widow and all his children on an equal footing as to his property, both real and personal, as long as the widow should remain his widow. In case she married a second time, she became entitled to have a child’s part of the per sonalty absolutely, and a life-estate for her own life in one hundred acres of land designated. In that case, she ceased to have an interest in common with her children in the property — her part of the property was to be set apart to her, and, this done, she held and owned it by a separate and distinct title under the will, while the children continued to own the balance thereof in common.

Thus the testator made a clear disposition of his property, both real and personal, tie seems to have thought, in making his will, perhaps without careful consideration, mainly of his wife and children and making provision for them particularly, without reference to children they might thereafter have, and of disposing of the property after the death of all of them. But be that as it may, in subsequent parts of his will he disposed of his property by limiting it to other persons after the death of his wife and all of his children. He provides, with particularity, that if his wife and all his children die, “then, and in that event,” &c. He certainly knew that liis wife and children would all die at some time. There was no reason of law that prevented him from making such disposition of his property. He might exclude the children of his children, directly or indirectly, if he saw fit to do so, and he might limit the property, or parís of it, or the proceeds, or part thereof, of the sale of it, as he did do, upon the happening of the event specified.

It appears that there was no personalty, or not sufficient to pay the debts of the testator. Then, under the will-and upon the material facts as they appear, when the first child of the testator died, her share of, and interest in, the property of the children, including the remainder in the land devised to the mother, descended to the sole surviving sister as heir at law; and when the latter died, the property descended to the mother, the feme plaintiff; and when she shall die, it will descend to her heirs at law, charged with the payment of the several legacies of the will, in tlieir order. If the property shall be more than sufficient to pay the legacies, the surplus will go to the heir at law or devisee of the. mother, the feme plaintiff.

Affirmed.