BaRNHIll, J.
Tbe plaintiff on this appeal does not contend there is any error in tbe judgment entered in respect to tbe real property devised to ber. Tbe question she raises, as stated in ber brief, is this: “Is tbe
feme
plaintiff’s estate in tbe personal properties bequeathed to ber by Item 5 of ber father’s Will absolute, or is it subject to a valid limitation over ?”
We settled that question on tbe former appeal,
Woodard v. Clark,
234 N.C. 215, 66 S.E. 2d 888. We then said:
“A consideration of tbe language contained in tbe Clark will in tbe light of this rule leads us to tbe conclusion that tbe devise to tbe plaintiff does not vest ber with an absolute, unrestricted title to tbe property she received under tbe will.
. . They (expressions used in the will) are imperative and disposi-tive in nature, effectively devising tbe property to others in tbe event plaintiff should die without issue surviving, (citing cases)”
Tbe cause was remanded “to tbe end tbe court may spell out plaintiff’s rights and define tbe limitations attached to ber title to tbe property involved.”
Even so, there is perhaps language in tbe opinion which would prompt tbe conclusion we held that tbe provisions of the will, and particularly tbe codicil, are sufficient, if effective, to create limitations upon tbe title of plaintiff to tbe personal property bequeathed to ber but left open for future decision tbe question whether such limitations are valid and vest defendants with a contingent future interest in tbe property. Tbe parties have proceeded upon tbe theory this was tbe intent and effect of tbe decision. For tbe purpose of more complete discussion of tbe question we will now so treat it.
In tbe early days of English history, holdings of choses in action and durable personal property were comparatively insignificant. Stocks, bonds, notes, and durable chattels not purely personal in nature, such as now compose the hulk of many estates, did not exist. So it was then considered that the ownership of personal property was absolute and incapable of division into succession interests and there could be no remainder or other future interest in a chattel. “. . . Future interests other than those arising out of the law of bailments were not permitted in the field of personal property.” Gavit Black. Comment. 452; 24 A. & E. Enc. 436; 2 Black. Comment. (Lewis’s Ed.) 856; 2 Kent Comm. 352; Gray Perpetuities (3rd Ed.) 598; Thompson Wills 435, sec. 353;
Baker v. R. R.,
113 N.C. 365, 92 S.E. 170.
But the courts of England in the seventeenth century relaxed the rule by holding that a future interest in personal property could be created by will. Gray Perpetuities (3rd Ed.) 600. Property
quae ipso usu con-sumuntur
was excepted and, originally, there were restrictions and limitations as to how such property was to be held and managed for the protection of the contingent future interest or remainder which are not material here.
“The English authorities . . . hold generally that a disposition of a remainder in a chattel is good only in a will ... or when given by the medium of a trust.” 24 A. & E. Enc. 438.
The common law rule has been abandoned by the American courts.
“Today ... (in the various courts of the United States) the generally accepted rule is that the same future interests that are permissible in the field of real property law are also permissible in the law of personal property, and the Eule against Perpetuities is a limitation on the creation of such interests in both fields.” Gavit Black. Comment. 452; 1 Simes F.I. 369; Thompson Wills 435, sec. 353; Gray Perpetuities (3rd Ed.) 72; 3 Page Wills 421, sec. 1150. For cases see Gray Perpetuities (4th Ed.), sec. 848, n. 1, and 14 N.C.L.R. 197, n. 6.
“The rule is now well established that personal property, as well as real estate, is a proper subject of executory interests and limitations, provided the contingency operating to defeat the estate of the first taker is no more remote than the law allows.” Thompson Wills 443, sec. 357.
“It is the
common
opinion in the United States that a future limitation of a chattel personal as a legal interest can be created by deed as well as by will ... In North Carolina alone is the opposite doctrine held.” Gray Perpetuities (3rd Ed.) 73-75; 19 A.J. 570, sec. 114.
“In America a future limitation by will of a chattel personal passes a legal interest . . . Even in North Carolina, where ... a future limitation of a chattel personal by deed is bad, a future limitation by will of
sueb chattel is good.” Gray Perpetuities (3rd Ed.)
71-72; 1
Simes F.I. 369; Gray Perpetuities (4th Ed.) 744.
So then, as stated in the textbooks cited, North Carolina still follows the common law rule which permits legal future interests in personal property to he created by will but not by deed.
“The principle of
Jones v. Spaight
(4 N.C. 157) is that since 1784, executory limitations of land and chattels are to be construed alike, upon the presumption that the intention of the testator is that in each case the estate should go over on the same event . . .”
Zollicoffer v. Zollicoffer,
20 N.C. 574.
“At common law the ownership of personal property was absolute and incapable of division into successive interests, but this was modified by the English courts to permit the disposition of such property
by will,
but not by deed, upon the same terms and in the same manner as real property, and this State has followed and adopted the later doctrine.”
Baker v. R. R., supra.
Recognizing and applying the. common law rule as the law in this jurisdiction, we have consistently held that the bequest of a remainder in personal property subject to a preceding life estate vests in the remainderman an enforceable legal estate in the property so bequeathed.
Dunwoodie's Executors v. Carrington,
4 N.C. 355;
Ingram v. Terry,
9 N.C. 122;
Burnett v. Roberts,
15 N.C. 81;
Smith v. Barham,
17 N.C. 420;
Knight v. Wall,
19 N.C. 125;
Knight v. Leah,
19 N.C. 133;
Creswell v. Emberson,
41 N.C. 151;
Chambers v. Bumpass,
72 N.C. 429;
Hodge v. Hodge,
72 N.C. 616;
Rilch v. Morris,
78 N.C. 377;
Britt v. Smith,
86 N.C. 305;
In re Knowles,
148 N.C. 461;
Williard v. Weavil,
222 N.C. 492, 23 S.E. 2d 890.
The rule has been applied in like manner where there was a gift generally to the first taker of (1) specific personal property, or (2) the entire estate of testator, or (3) the residue of the estate, with a limitation over to others in the event the original donee should die without issue or upon some other contingency.
M'Kay v. Hendon, 7
N.C. 21;
Zollicoffer v. Zollicoffer, supra; Threadgill v. Ingram,
23 N.C. 577;
Skinner v. Lamb,
25 N.C. 155;
Gregory v. Beasley,
36 N.C. 25;
Spruill v. Moore,
40 N.C. 284;
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BaRNHIll, J.
Tbe plaintiff on this appeal does not contend there is any error in tbe judgment entered in respect to tbe real property devised to ber. Tbe question she raises, as stated in ber brief, is this: “Is tbe
feme
plaintiff’s estate in tbe personal properties bequeathed to ber by Item 5 of ber father’s Will absolute, or is it subject to a valid limitation over ?”
We settled that question on tbe former appeal,
Woodard v. Clark,
234 N.C. 215, 66 S.E. 2d 888. We then said:
“A consideration of tbe language contained in tbe Clark will in tbe light of this rule leads us to tbe conclusion that tbe devise to tbe plaintiff does not vest ber with an absolute, unrestricted title to tbe property she received under tbe will.
. . They (expressions used in the will) are imperative and disposi-tive in nature, effectively devising tbe property to others in tbe event plaintiff should die without issue surviving, (citing cases)”
Tbe cause was remanded “to tbe end tbe court may spell out plaintiff’s rights and define tbe limitations attached to ber title to tbe property involved.”
Even so, there is perhaps language in tbe opinion which would prompt tbe conclusion we held that tbe provisions of the will, and particularly tbe codicil, are sufficient, if effective, to create limitations upon tbe title of plaintiff to tbe personal property bequeathed to ber but left open for future decision tbe question whether such limitations are valid and vest defendants with a contingent future interest in tbe property. Tbe parties have proceeded upon tbe theory this was tbe intent and effect of tbe decision. For tbe purpose of more complete discussion of tbe question we will now so treat it.
In tbe early days of English history, holdings of choses in action and durable personal property were comparatively insignificant. Stocks, bonds, notes, and durable chattels not purely personal in nature, such as now compose the hulk of many estates, did not exist. So it was then considered that the ownership of personal property was absolute and incapable of division into succession interests and there could be no remainder or other future interest in a chattel. “. . . Future interests other than those arising out of the law of bailments were not permitted in the field of personal property.” Gavit Black. Comment. 452; 24 A. & E. Enc. 436; 2 Black. Comment. (Lewis’s Ed.) 856; 2 Kent Comm. 352; Gray Perpetuities (3rd Ed.) 598; Thompson Wills 435, sec. 353;
Baker v. R. R.,
113 N.C. 365, 92 S.E. 170.
But the courts of England in the seventeenth century relaxed the rule by holding that a future interest in personal property could be created by will. Gray Perpetuities (3rd Ed.) 600. Property
quae ipso usu con-sumuntur
was excepted and, originally, there were restrictions and limitations as to how such property was to be held and managed for the protection of the contingent future interest or remainder which are not material here.
“The English authorities . . . hold generally that a disposition of a remainder in a chattel is good only in a will ... or when given by the medium of a trust.” 24 A. & E. Enc. 438.
The common law rule has been abandoned by the American courts.
“Today ... (in the various courts of the United States) the generally accepted rule is that the same future interests that are permissible in the field of real property law are also permissible in the law of personal property, and the Eule against Perpetuities is a limitation on the creation of such interests in both fields.” Gavit Black. Comment. 452; 1 Simes F.I. 369; Thompson Wills 435, sec. 353; Gray Perpetuities (3rd Ed.) 72; 3 Page Wills 421, sec. 1150. For cases see Gray Perpetuities (4th Ed.), sec. 848, n. 1, and 14 N.C.L.R. 197, n. 6.
“The rule is now well established that personal property, as well as real estate, is a proper subject of executory interests and limitations, provided the contingency operating to defeat the estate of the first taker is no more remote than the law allows.” Thompson Wills 443, sec. 357.
“It is the
common
opinion in the United States that a future limitation of a chattel personal as a legal interest can be created by deed as well as by will ... In North Carolina alone is the opposite doctrine held.” Gray Perpetuities (3rd Ed.) 73-75; 19 A.J. 570, sec. 114.
“In America a future limitation by will of a chattel personal passes a legal interest . . . Even in North Carolina, where ... a future limitation of a chattel personal by deed is bad, a future limitation by will of
sueb chattel is good.” Gray Perpetuities (3rd Ed.)
71-72; 1
Simes F.I. 369; Gray Perpetuities (4th Ed.) 744.
So then, as stated in the textbooks cited, North Carolina still follows the common law rule which permits legal future interests in personal property to he created by will but not by deed.
“The principle of
Jones v. Spaight
(4 N.C. 157) is that since 1784, executory limitations of land and chattels are to be construed alike, upon the presumption that the intention of the testator is that in each case the estate should go over on the same event . . .”
Zollicoffer v. Zollicoffer,
20 N.C. 574.
“At common law the ownership of personal property was absolute and incapable of division into successive interests, but this was modified by the English courts to permit the disposition of such property
by will,
but not by deed, upon the same terms and in the same manner as real property, and this State has followed and adopted the later doctrine.”
Baker v. R. R., supra.
Recognizing and applying the. common law rule as the law in this jurisdiction, we have consistently held that the bequest of a remainder in personal property subject to a preceding life estate vests in the remainderman an enforceable legal estate in the property so bequeathed.
Dunwoodie's Executors v. Carrington,
4 N.C. 355;
Ingram v. Terry,
9 N.C. 122;
Burnett v. Roberts,
15 N.C. 81;
Smith v. Barham,
17 N.C. 420;
Knight v. Wall,
19 N.C. 125;
Knight v. Leah,
19 N.C. 133;
Creswell v. Emberson,
41 N.C. 151;
Chambers v. Bumpass,
72 N.C. 429;
Hodge v. Hodge,
72 N.C. 616;
Rilch v. Morris,
78 N.C. 377;
Britt v. Smith,
86 N.C. 305;
In re Knowles,
148 N.C. 461;
Williard v. Weavil,
222 N.C. 492, 23 S.E. 2d 890.
The rule has been applied in like manner where there was a gift generally to the first taker of (1) specific personal property, or (2) the entire estate of testator, or (3) the residue of the estate, with a limitation over to others in the event the original donee should die without issue or upon some other contingency.
M'Kay v. Hendon, 7
N.C. 21;
Zollicoffer v. Zollicoffer, supra; Threadgill v. Ingram,
23 N.C. 577;
Skinner v. Lamb,
25 N.C. 155;
Gregory v. Beasley,
36 N.C. 25;
Spruill v. Moore,
40 N.C. 284;
Jones v. Simmons,
42 N.C. 178;
Braswell v. Morehead,
45 N.C. 26;
Hall v. Robinson,
56 N.C. 348;
Williams v. Gotten,
56 N.C. 395;
Baker v. R. R., supra; Ernul v. Ernul,
191 N.C. 347, 132 S.E. 2.
When such future interest is created by will it is valid and vests in the ulterior taker an enforceable title either vested or contingent, depending on the condition or event upon the happening of which the right of possession is made to rest.
There is a sound reason why this Court still adheres to the common law rule. So much of the common law “as is not destructive of, or repugnant
to, or inconsistent with, the freedom and independence of this state . . . and which has not been . . . abrogated, repealed, or become obsolete . . .” is declared by G-.S. 4-1 to be in full force and effect in this jurisdiction. This statute was first enacted in 1715, re-enacted in 1778, and successively with each complete re-enactment of our statute law.
Speight v. Speight,
208 N.C. 132, 179 S.E. 461.
With full knowledge of the decisions on the subject the General Assembly has not seen fit to alter the rule except as to slaves (1 Bev. Stat., ch. 37, sec. 22, Act of 1823; Eevised Code, 1854, ch. 37, par. 21), and of course both of the Acts respecting slaves are now obsolete. It is the prerogative of the Legislature and not the Court to so modify the rule as to bring it in line with modern decisions in other jurisdictions. Until this is done, we must apply the law as we find it.
For eases holding that a future interest in personal property may not be created
inter vivos
see
Brown v. Pratt,
56 N.C. 202;
Outlaw v. Taylor,
168 N.C. 511, 84 S.E. 811;
Speight v. Speight,
208 N.C. 132, 179 S.E. 461; and
Nixon v. Nixon,
215 N.C. 377, 1 S.E. 2d 828.
But plaintiff cites and relies on
Hood v. McElvain,
215 N.C. 568, 2 S.E. 2d 557. She stressfully contends that the Court in that decision abandoned the common law rule and placed deeds and wills on a parity by holding that there can be no valid future interest in personal property created either by will or deed.
That opinion, considered apart from the record in the case, is clearly susceptible of that interpretation. “But 'the law discussed in any opinion is set within the framework of the facts of that particular case (citing eases) ;’ or as expressed by
Chief Justice Marshall
in
U. S. v. Burr,
2 L. Ed. 684, at p. 690: ‘Every opinion, to be clearly understood, ought to be considered with a view to the case in which it was delivered.’ ”
Poindexter v. Motor Lines,
235 N.C. 286, and cases cited.
When the
Hood case
is so considered, it is made to appear that it does not sustain plaintiff’s position. There the court below concluded that the bequest to the first taker was coupled with an unrestricted right of disposition and that therefore the limitation over to the ulterior beneficiaries was void. While the record does not seem to sustain this conclusion, the appellant did not assail the judgment on that ground or cite any authority in respect thereto. And when the gift is to the immediate legatee with unrestricted power of disposition, it vests the absolute estate, leaving-nothing in the testator “capable of being given over to a third person.”
Hall v. Robinson, supra,
Anno. 17 A.L.R. 2d 30. The attempted limitation over is void for repugnancy.
Hall v. Robinson, supra; Chewning v. Mason,
158 N.C. 578, 74 S.E. 357;
Hambright v. Carroll,
204 N.C. 496, 168 S.E. 817; 3 Page Wills 426, sec. 1153; Thompson Wills 438.
On the appeal from the judgment of the Superior Court, this Court was limited to a consideration of exceptions and assignments of error contained in the record and brought forward and discussed in the appellant’s brief. Of necessity, therefore, the judgment entered was affirmed.
The court below sufficiently defined the nature of plaintiff’s title to the personal property bequeathed to her and spelled out “the limitations, restrictions, qualifications and conditions” attached thereto by the language contained in the Clark will and codicil. There is no exception or assignment of error in the record directed to this particular part of the judgment and plaintiff does not. challenge the same in her brief. We are of the opinion that the conclusions of the court below fully comply with the directions contained in our opinion on the original appeal and correctly interpret the terms of the will and codicil in this respect.
The judgment entered in the court below is
Affirmed.