Adams, J.
The death of the testator, Robert M. Sloan, occurred on 27 July, 1905. One of his daughters, Mattie Sloan Barringer, died 11 February, 1915, leaving surviving her Fannie Sloan Waldrop, her only child, whose death took place 29 September, 1918. Mrs. Fannie Logan died 11 January, 1926. The defendant contends that under the first item of Robert M. Sloan’s will the devisees acquired a vested estate in remainder, the defendant’s wife taking at the testator’s death an undivided one-sixth interest in the real property; also that by virtue of her last will he succeeded to her title as sole devisee, and that he would have inherited the same interest from his daughter even if his wife had made
no will. On the other hand the plaintiffs say that the interest of Mrs. Barringer was contingent; that the contingency upon the happening of which her interest was to become vested did not occur during her lifetime ; and that she had no estate in the devised property which could' be inherited by her surviving daughter or given to her husband by her last will and testament. What interest, then, if any, did she acquire under the first item of her father’s will?
In the construction of a will the cardinal purpose is to ascertain and give effect to the intention of the testator as expressed in the words he has used, and to ascertain such intention all the provisions may be examined in the light of the circumstances, including the state of the testator’s family at the time the will was made.
Gibbons v. Dunn,
18 N. C., 446;
Witty v. Witty,
184 N. C., 375;
McIver v. McKinney, ibid.,
393;
Snow v. Boylston,
185 N. C., 321;
In re Wolfe, ibid.,
563;
Pratt v. Mills,
186 N. C., 396;
McCullen v. Daughtry,
190 N. C., 215. In the present case the testator had a specific purpose in mind; he evidently intended that both devises and legacies should be given only to his children or their representatives. In the first item he devised the “home place” to Mrs. Logan for the term of her natural life and “left to her choice” an election between continuing “to keep house and live on the property” and “selling the same by agreement with the other heirs as to the value of the life estate” and dividing the proceeds “between herself and the other brothers and sisters or their representatives before her death.” If this was not done during her life, at her death the property was to be “divided equally in fee simple between all his children or their representatives share and share alike without discrimination.” In the second item'he made a similar disposition of his household and kitchen furniture, library, pictures, silverware, and watch and ornaments; in the third, he gave Mrs. Logan ten shares of stock in the Guilford Lumber Company; and in the fourth he devised and bequeathed all his other property to his children and the representatives of such as were or might be dead. Every devise, every bequest is purposely and cautiously restricted to those of his own blood. In these circumstances what is the legal significance of the devise appearing in the first item of his will? Mrs. Logan, it will he noted, did not see fit to sell the “home place”; so the provision in reference to “her choice” of using or disposing of the property may be considered primarily in its relation to the testator’s intent, the controversy finally turning on the last paragraph of the first item: “If this be not done during her life, at her death my will is” that the property be divided as therein directed.
The difference between vested and contingent remainders is clearly defined. A remainder is vested where the estate is invariably fixed, to remain to a determinate person, after the particular estate is spent; it
is contingent where the estate in remainder is limited to take effect either to an uncertain person or upon an uncertain event. The former passes a present interest to be enjoyed in the future; by the latter no present estate is transferred. If there is uncertainty as to the person or persons who will be entitled to enjoy the remainder or if a conditional element is made a part of the description of the remainder, it is contingent. So the immediate question is whether the testator’s direction as to the distribution of the proceeds to be derived from the sale by Mrs. Logan, if she should make the sale, and his direction as to the division of the property itself after her death, if she had made no sale, designated the time when the estate in interest vested or the time when it was to be enjoyed in possession. If these provisions fixed the time when the right of property accrued, not the mere right of enjoyment, Mrs. Barringer took an interest contingent upon her surviving the life tenant.
A similar question arose in
Bowen v. Hackney,
136 N. C., 187, in which this clause was construed: “I now declare that, with the advancements already made and specifically given in this will, in my judgment, equality is made to all my children so that at the expiration of the life estate of my wife, that which is given to her for life shall be equally divided between all my children, share and share alike, the representatives of such as may have died to stand in the place of their ancestors.” A daughter of the testator had predeceased the life tenant, and it was held that her estate was contingent upon her surviving the life tenant and that no interest passed by her will to her husband. Eecognizing the general rule that if there is in terms a devise, and the time of enjoyment merely is postponed, the interest is a vested one, but if the time be annexed to the substance of the gift or devise as á condition precedent, it is contingent, the Court adopted the following passage from Gray on Perpetuities: “The true test in limitations of this character is that, if the conditional element is' incorporated into the description of the gift to the remainderman, then the remainder is contingent, but if after the words giving a vested interest a clause is added divesting it, the remainder is vested.” It was held that the clause then under consideration annexed to the gift a condition precedent which prevented its vesting in any child who did not survive the life tenant.
The last clause in the first item of Eobert M. Sloan’s will bears a striking analogy to the clause which was construed in
Bowen v. Hackney,
and the principle there announced applies with equal force to both. Robert M. Sloan no doubt had in mind, as
Mr. Justice Walker
suggested in reference to Willis N. Hackney, the possibility that some of his children might die during the life of the first taker; indeed, he knew when the will was written that one of his sons had died leaving surviving children; and thiscontingency he met by providing for the
“representatives” (not the general heirs) of such children as were or might be dead when the property was divided. It is further evident, as suggested, that the testator intended that the devise should take effect according to the state of his family at the time the division was made. The “representatives” of any deceased children were then to stand in the place of their ancestor; it is therefore immaterial, as said in
Bowen v. Hackney,
whether the remainder to each child is contingent or whether it is vested, but subject to be divested by the child’s death before that of the life tenant.
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Adams, J.
The death of the testator, Robert M. Sloan, occurred on 27 July, 1905. One of his daughters, Mattie Sloan Barringer, died 11 February, 1915, leaving surviving her Fannie Sloan Waldrop, her only child, whose death took place 29 September, 1918. Mrs. Fannie Logan died 11 January, 1926. The defendant contends that under the first item of Robert M. Sloan’s will the devisees acquired a vested estate in remainder, the defendant’s wife taking at the testator’s death an undivided one-sixth interest in the real property; also that by virtue of her last will he succeeded to her title as sole devisee, and that he would have inherited the same interest from his daughter even if his wife had made
no will. On the other hand the plaintiffs say that the interest of Mrs. Barringer was contingent; that the contingency upon the happening of which her interest was to become vested did not occur during her lifetime ; and that she had no estate in the devised property which could' be inherited by her surviving daughter or given to her husband by her last will and testament. What interest, then, if any, did she acquire under the first item of her father’s will?
In the construction of a will the cardinal purpose is to ascertain and give effect to the intention of the testator as expressed in the words he has used, and to ascertain such intention all the provisions may be examined in the light of the circumstances, including the state of the testator’s family at the time the will was made.
Gibbons v. Dunn,
18 N. C., 446;
Witty v. Witty,
184 N. C., 375;
McIver v. McKinney, ibid.,
393;
Snow v. Boylston,
185 N. C., 321;
In re Wolfe, ibid.,
563;
Pratt v. Mills,
186 N. C., 396;
McCullen v. Daughtry,
190 N. C., 215. In the present case the testator had a specific purpose in mind; he evidently intended that both devises and legacies should be given only to his children or their representatives. In the first item he devised the “home place” to Mrs. Logan for the term of her natural life and “left to her choice” an election between continuing “to keep house and live on the property” and “selling the same by agreement with the other heirs as to the value of the life estate” and dividing the proceeds “between herself and the other brothers and sisters or their representatives before her death.” If this was not done during her life, at her death the property was to be “divided equally in fee simple between all his children or their representatives share and share alike without discrimination.” In the second item'he made a similar disposition of his household and kitchen furniture, library, pictures, silverware, and watch and ornaments; in the third, he gave Mrs. Logan ten shares of stock in the Guilford Lumber Company; and in the fourth he devised and bequeathed all his other property to his children and the representatives of such as were or might be dead. Every devise, every bequest is purposely and cautiously restricted to those of his own blood. In these circumstances what is the legal significance of the devise appearing in the first item of his will? Mrs. Logan, it will he noted, did not see fit to sell the “home place”; so the provision in reference to “her choice” of using or disposing of the property may be considered primarily in its relation to the testator’s intent, the controversy finally turning on the last paragraph of the first item: “If this be not done during her life, at her death my will is” that the property be divided as therein directed.
The difference between vested and contingent remainders is clearly defined. A remainder is vested where the estate is invariably fixed, to remain to a determinate person, after the particular estate is spent; it
is contingent where the estate in remainder is limited to take effect either to an uncertain person or upon an uncertain event. The former passes a present interest to be enjoyed in the future; by the latter no present estate is transferred. If there is uncertainty as to the person or persons who will be entitled to enjoy the remainder or if a conditional element is made a part of the description of the remainder, it is contingent. So the immediate question is whether the testator’s direction as to the distribution of the proceeds to be derived from the sale by Mrs. Logan, if she should make the sale, and his direction as to the division of the property itself after her death, if she had made no sale, designated the time when the estate in interest vested or the time when it was to be enjoyed in possession. If these provisions fixed the time when the right of property accrued, not the mere right of enjoyment, Mrs. Barringer took an interest contingent upon her surviving the life tenant.
A similar question arose in
Bowen v. Hackney,
136 N. C., 187, in which this clause was construed: “I now declare that, with the advancements already made and specifically given in this will, in my judgment, equality is made to all my children so that at the expiration of the life estate of my wife, that which is given to her for life shall be equally divided between all my children, share and share alike, the representatives of such as may have died to stand in the place of their ancestors.” A daughter of the testator had predeceased the life tenant, and it was held that her estate was contingent upon her surviving the life tenant and that no interest passed by her will to her husband. Eecognizing the general rule that if there is in terms a devise, and the time of enjoyment merely is postponed, the interest is a vested one, but if the time be annexed to the substance of the gift or devise as á condition precedent, it is contingent, the Court adopted the following passage from Gray on Perpetuities: “The true test in limitations of this character is that, if the conditional element is' incorporated into the description of the gift to the remainderman, then the remainder is contingent, but if after the words giving a vested interest a clause is added divesting it, the remainder is vested.” It was held that the clause then under consideration annexed to the gift a condition precedent which prevented its vesting in any child who did not survive the life tenant.
The last clause in the first item of Eobert M. Sloan’s will bears a striking analogy to the clause which was construed in
Bowen v. Hackney,
and the principle there announced applies with equal force to both. Robert M. Sloan no doubt had in mind, as
Mr. Justice Walker
suggested in reference to Willis N. Hackney, the possibility that some of his children might die during the life of the first taker; indeed, he knew when the will was written that one of his sons had died leaving surviving children; and thiscontingency he met by providing for the
“representatives” (not the general heirs) of such children as were or might be dead when the property was divided. It is further evident, as suggested, that the testator intended that the devise should take effect according to the state of his family at the time the division was made. The “representatives” of any deceased children were then to stand in the place of their ancestor; it is therefore immaterial, as said in
Bowen v. Hackney,
whether the remainder to each child is contingent or whether it is vested, but subject to be divested by the child’s death before that of the life tenant. In either case only one result can be reached.
This interpretation is not inconsistent with the first clause of the first item. In this clause the real property was not given to the children or their representatives, and their interest was contingent upon two events: Mrs. Logan’s election to sell the property, and, if the election were exercised, the time of the sale. How many of the children would then be living? How many would then be dead with or without surviving representatives? Whether the clauses be construed separately or together the conclusion is the same: Mrs. Barringer did not acquire a vested estate at the testator’s death, but an interest contingent upon her surviving the life tenant who made no disposition of the property “before her death.” It follows that no estate in the devised property descended to her daughter or passed to her husband under her will. In addition to the cases cited in
Bowen v. Hackney,
we may refer to the following in support of our conclusion:
Mercer v. Downs,
191 N. C., 203;
Brown v. Guthery,
190 N. C., 822;
Matthews v. Griffin,
187 N. C., 599;
Pratt v. Mills,
186 N. C., 396;
Cilley v. Geitner,
182 N. C., 714;
Thompson v. Humphrey,
179 N. C., 44;
Grantham v. Jinnette,
177 N. C., 229;
Jenkins v. Lambeth,
172 N. C., 466;
Latham v. Lumber Co.,
139 N. C., 9.
The cases cited by the defendant were decided upon a different principle. For example, in
Williams v. Sasser,
191 N. C., 453, the remainder was held to be vested because there were no words importing survivorship or other contingency. So in
Witty v. Witty, supra;
but there it was- said that contingent and not vested remainders are created where a testator limits the remainder after a life estate to certain persons or to the representatives of those who may have died. Not less than four times Robert M. Sloan referred in his will to the representatives of his children and brought the disposition of his property clearly within the principle enunciated in
Bowen v. Hackney,
and many other cases. The judgment is
Affirmed.