Opinion
(January Term, 1867.)
Where it appeared that the sole motive with a testator, for leaving the greater part of his estate to a son, was, that the latter should live with him and help him pay his debts, and also treat his parents with "humanity and kindness," and such son died in the lifetime of the testator: Held, that the devise lapsed; also, that the son's interest in the condition was not "real or personal estate" within the statute (Code, c. 119, s. 28), which gives such estate to the issue of a son dying under such circumstances.
BILL to obtain construction of a paragraph in the will of Thomas Rowland, filed to Fall Term, 1864, of STANLY, and then set for hearing upon bill and answer and transmitted to this court.
Dargan, and Phillips Battle, for the administrators.
No counsel for the other parties.
The paragraph was as follows: "My will and desire is that my dearly beloved son, John A. Rowland, should live with me my lifetime; and if in case he will do so and help me pay all my just debts and demands against me, and treat me and his mother with humanity and kindness, I will and bequeath to him and his heirs and assigns forever all my tracts of land, except that I shall hereafter name; and in case I keep my negro man, Jacob, till my death, I also will and bequeath him to my son, John, with all and everything that I own and possess, of (144) whatever kind and nature named and not named, by his paying my daughter, Luda," etc.; "and now, if in case there should be any dispute about this will being my will and desire, it may be ascertained that it is, as it is, by looking at a deed of conveyance that I made to him some six or eight years ago, that I made to him the said John A. Rowland for three hundred and twenty acres of land, being the same land with some more now added to it."
The facts were that the testator died in November, and John A. Rowland in August, 1862; that the testator left surviving him as issue four daughters, besides an infant child of said John A., who is the defendant; also that no deed like the one referred to in the will could be found, and that the administrators with the will annexed had, since the death of the testator, paid off some three hundred dollars of debts that had been due by him for two or three years before his death.
A devise of land upon a condition precedent can never take effect where the condition has become, in any way, impossible to be performed. All the authorities agree in this: "But by the civil law, which on this subject has been adopted by the Court of Equity, when a condition precedent to the vesting of a legacy is impossible, the bequest is single, that is, discharged from the condition, and the legatee will be entitled as if the legacy were unconditional." An exception to this rule in relation to legacies prevails where the condition is the motive, or as some authors say, the sole motive of the bequest. 2 Wms. Ex'rs., 786; 1 Rop. Leg., 505, 506. In Nunnery v. Carter, 58 N.C. 370, we held that where personal property was bequeathed to a son, "provided he take care of his mother for her lifetime," it was not the intention of the testator that the whole condition should be performed before the property vested, but that he should take an estate at once, to be (145) forfeited on failing to perform the continuing duty. It followed from this that the son took the legacy, notwithstanding the death of his mother in the lifetime of the testator, because the taking here of the mother was not the sole motive of the bequest to the son. But in the present case the condition precedent assumes a different aspect. It appears that the sole motive with the testator for leaving the greater part of his estate to his son. John, to the exclusion of all his other children, was that John should live with him and help him pay debts, as well as treat his parents with "humanity and kindness." John's life was terminated by the act of God before the death of the testator, so that he could not perform the condition upon which he was to have the property. Indeed his death in the lifetime of his father, the testator, caused the legacy to lapse and the benefit of the condition is not "real or personal estate," which the statute gives to issue of the legatee dying under such circumstances. See Rev. Code, ch. 119, sec. 28.
It must be declared that the death of the devisee and legatee, John A. Rowland, in the lifetime of the testator, has left the property, both real and personal, intended for him undisposed of, and that the same belongs to the heirs-at-law and next of kin of the testator. There may be a decree for the necessary accounts, etc.
PER CURIAM. Decree accordingly.
Cited: McNeely v. McNeely, 82 N.C. 186; Burleyson v. Whitley, 97 N.C. 298.
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