Opinion
(Fall Riding, 1805.)
If there be a devise of lands to A. for life, and after his death to John, son of A., and his heirs forever, and if no heir, then over; the limitation over is too remote, and void.
EJECTMENT. Abraham Stephenson died in 1791, leaving a will, and therein he devised the lands in question to his son Charles for his life; and after his death to John, the son of Charles, and his heirs forever; and if no heir, then over to Abraham Darden and his heirs forever, etc. John died in the lifetime of the devisor, leaving two sisters of the whole blood, the plaintiffs. In the will there is a residuary clause devising all the rest and residue of his real and personal estate to Charles.
Haywood, for plaintiffs, contends that the devise over to Abraham Darden is a void devise, being to take effect after failure of heirs of John, which event was too remote to expect, and made a perpetuity; and, besides, that the event had not taken place, for John did not die without heir, but had an heir, the two plaintiffs. And if the limitation over was void, or could not take effect because the event had not happened, then the estate, being undisposed of by the (357) death of John in the lifetime of the devisor, went, under the residuary clause, to Charles, and from him descended to his heirs, the two plaintiffs; or if it did not pass by the residuary devise, then it descended on Charles, and, on his death, to the plaintiffs. The event of John's death in the life of the devisee would have let in the next limitation had it been a good one in its creation; but not being so, no after event can make it good; and for this he cited Fearne, 4th edition, 417, 438.
Browne, e contra: The meaning of the devisor is to be followed, and the word heir, being in the singular number, meant child; and the phrase used is tantamount to saying if John died without a child, then over to Abraham Darden. He cited Archer's case in Coke's Reports. Also, he said the expression was, if no heir, then over; which did not mean a dying without heirs indefinitely, but a dying without heir at the time of his death.
Haywood, in reply: His meaning was that John and his posterity should have the estate as long as there was any, and when that failed, that it should go over. If John had a child and died, and then that child had a child and died, and then the last child died without issue, it was the meaning of the testator that in such an event the estate should go over to Abraham; and such meaning is not agreeable to the rules for prevention of perpetuities, and concerning executory devises.
was of opinion for the plaintiffs, and directed the jury to find for them, which they did; and there was judgment for the plaintiffs, after a new trial had been moved for.
NOTE. — See Sutton v. Wood, 1 N.C. 399; Bryson v. Davidson, 5 N.C. 143; Pendleton v. Pendleton, 6 N.C. 82; Wooten v. Shelton, ibid., 188; Jones v. Spaight, 4 N.C. 157; Davidson v. Davidson, 8 N.C. 163; Sanders v. Hyatt, ibid., 247; Bailey v. Davis, 9 N.C. 108; Beasley v. Whitehurst, ibid., 437. By the act of 1827 (1 Rev. Stat., ch. 122, sec. 11) the law on this subject is altered.
Cited: Rice v. Satterwhite, 21 N.C. 71; Buchanan v. Buchanan, 99 N.C. 311.