Elmore v. Austin

Annotate this Case

59 S.E.2d 205 (1950)

232 N.C. 13

ELMORE et al. v. AUSTIN et al.

No. 453.

Supreme Court of North Carolina.

May 3, 1950.

*209 William Joslin, Raleigh, for the plaintiffs.

Martin R. Peterson for Martin R. Peterson, guardian ad litem.

Brassfield & Maupin, Raleigh, for the defendants Louise P. Austin, Isabell A. Armstrong, and Edward U. Austin.

ERVIN, Justice.

The appeal of the plaintiffs challenges the validity of the declarations of the judgment in respect to the devises to the plaintiff, Lucy P. Elmore, under the third and seventh items of the will.

In construing a will, the court seeks to ascertain and carry into effect the expressed intention of the testator, i e., the intention which the will itself, either explicitly or implicitly, declares. Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621; Sharpe v. Isley, 219 N.C. 753, 14 S.E.2d 814; Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; Anderson v. Bridgers, 209 N.C. 456, 184 S.E. 78; Snow v. Boylston, 185 N.C. 321, 117 S.E. 14. Where the language employed by the testator is plain and its import is obvious, the judicial chore is light work; for, in such event, the words of the testator must be taken to mean exactly what they say. Whitfield v. Garris, 131 N.C. 148, 42 S.E. 568. But where the language in the will does not clearly express the testator's purpose, or when his intention is obscure because of the use of inconsistent clauses or words, the court finds itself confronted by a perplexing task. In such case, the court calls to its aid more or less arbitrary canons or rules of testamentary construction designed by the law to resolve any doubts in the language of the testator in favor of interpretations which the law deems desirable. 57 Am.Jur., Wills, sections 1120, 1124; Am.Law.Inst. Restatement, Property, Vol. 3, section 243.

The third item of the will undertakes to set forth the intent of the testator in respect to the devolution of Lot No. 3 of the Bloomsbury Property in two-fold fashion. Unfortunately the phraseology used in the first statement is employed in reverse *210 in the second. As a result of this doubleness of expression, the language of the item is more or less inconsistent, and the purpose of the testator in regard to the lot is somewhat obscure. Similar observations apply to the seventh item, which devised to the feme plaintiff a share in remainder in the residuary realty of the testator.

These things being true, the court must invoke the canons or rules of testamentary construction germane to its present problems. These are as follows:

1. "When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity." G.S. § 31-38; Kirkman v. Smith, 174 N.C. 603, 94 S.E. 423."

2. The law favors the construction of a will which gives to the devisee a vested interest at the earliest possible moment that the testator's language will permit. Priddy & Co., v. Sanderford, 221 N.C. 422, 20 S.E.2d 341; McDonald v. Howe, 178 N.C. 257, 100 S.E. 427. As an incident of this rule, courts prefer to construe doubtful conditions as subsequent rather than precedent because such construction gives the devisee a vested estate subject to be divested instead of deferring the vesting. Mountain Park Institute v. Lovill, 198 N.C. 642, 153 S.E. 114; 69 C.J., Wills, section 1784.

3. "The law favors not only the early vesting, but also the early indefeasible or absolute vesting, of estates." 69 C.J., Wills, section 1682. As a corollary of this rule, such a construction is to be put upon conditional expressions, which render a testamentary gift defeasible, as to confine their operation to as early a period as the words of the will allow, so that it may become an absolute interest as soon as the language of the testator will permit. Westfeldt v. Reynolds, 191 N.C. 802, 133 S.E. 168; Whitfield v. Douglass, 175 N.C. 46, 94 S.E. 667; Biddle v. Hoyt, 54 N.C. 159; Hilliard v. Kearney, 45 N.C. 221.

4. "Every contingent limitation in any * * * will, made to depend upon the dying of any person * * * without issue * * * shall be held and interpreted a limitation to take effect when such person dies not having such * * * issue * * * living at the time of his death * * * unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the * * * will creating it." G.S. § 41-4; Willis v. Mutual Loan & Trust Co., 183 N.C. 267, 111 S.E. 163; Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Dawson v. Ennett, 151 N.C. 543, 66 S.E. 566; Wilkinson v. Boyd, 136 N.C. 46, 48 S.E. 516; Kornegay v. Morris, 122 N.C. 199, 29 S.E. 875; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435, 6 Am.St.Rep. 574; Buchanan v. Buchanan, 99 N.C. 308, 5 S.E. 430.

The judgment under review is necessarily based on the theory that the third item of the will gives the feme plaintiff two distinct legal estates in Lot No. 3 of the Bloomsbury Property; that the first is a life estate, which inevitably ends at her death; and that the second is an estate in fee, which remains contingent throughout her life, but will vest in her absolutely at her death in case specified contingencies are satisfied. We by-pass without discussion or decision the intriguing, but somewhat disconcerting, assumption implicit in the judgment that the law will permit an erstwhile devisee, who has departed this life, to become vested of an earthly estate in fee simple absolute at a time when theology testifies that she is only fitted for a home in heaven.

Be that as it may, the trial court has fallen into error in other respects. The third item of the will devises a single estate to the feme plaintiff. Since such estate may last forever, it is a fee simple; and since it may end on the happening of a specified event, it is a fee simple defeasible rather than a fee simple absolute. Am. Law.Inst. Restatement, Property, Vol. 1, Chapters 3 and 4. See, also, in this connection: 19 Am.Jur., Estates, sections 13, 28; 31 C.J.S., Estates, §§ 8, 10; Paul v. Willoughby, 204 N.C. 595, 169 S.E. 226; Henderson v. Western Carolina Power Co., 200 *211 N.C. 443, 157 S.E. 425, 80 A.L.R. 497; West v. Murphy, 197 N.C. 488, 149 S.E. 731; James v. Griffin, 192 N.C. 285, 134 S.E. 849; Alexander v. Fleming, 190 N.C. 815, 130 S.E. 867; Walger v. Butner, 187 N.C. 535, 122 S.E. 301; Love v. Love, 179 N.C. 115, 101 S.E. 562; Smith v. Parks, 176 N.C. 406, 97 S.E. 209; Williams v. Blizzard, 176 N.C. 146, 96 S.E. 957; Albright v. Albright, 172 N.C. 351, 90 S.E. 303; Bizzell v. Mutual Building & Loan Association, 172 N.C. 158, 90 S.E. 142; Maynard v. Sears, 157 N.C. 1, 72 S.E. 609; Elkins v. Seigler, 154 N.C. 374, 70 S.E. 636; Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904; Keith v. Scales, 124 N.C. 497, 32 S.E. 809; Wright v. Brown, 116 N.C. 26, 22 S.E. 313; Hall v. Turner, 110 N.C. 292, 14 S.E. 791.

An estate in fee simple defeasible may be either (1) an estate in fee simple determinable, or (2) an estate in fee simple subject to a condition subsequent, or (3) an estate in fee simple subject to an executory limitation. Am.Law Inst. Restatement, Property, Vol. 1, sections 44, 45, 46.

When the sixth item of the will is read in the light of the relevant canons and rules of testamentary construction, it becomes manifest that the testator thereby devised Lot No. 3 of the Bloomsbury Property to the feme plaintiff in fee simple determinable. This is true because "an estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple; and provides that the estate shall automatically expire upon the occurrence of a stated event." Am. Law Inst. Restatement, Property, Vol. 1, section 44.

Notwithstanding the qualification annexed to it, a fee simple determinable constitutes the entire estate throughout its continuance. Landers v. Landers, 151 Ky. 206, 151 S.W. 386, Ann.Cas.1915A, 223; Proprietors of Church in Brattle Square v. Grant, 3 Gray 142, 69 Mass. 142, 63 Am. Dec. 725; Lyford v. Laconia, 75 N.H. 220, 72 A. 1085, 22 L.R.A., N.S., 1062, 139 Am. St.Rep. 680. It retains its defeasible quality, however, until the happening of the stated event by which it is to be determined, or until it is converted into a fee simple absolute. Harrell v. Hagan, 147 N.C. 111, 60 S.E. 909, 125 Am.St.Rep. 539. A fee simple determinable is converted into a fee simple absolute when the stated event on which it is limited becomes impossible of occurrence. Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404; Simes: Law of Future Interests, section 187; 31 C.J.S., Estates, § 10; 69 C.J. Wills, § 1559.

When the owner of land in fee simple absolute devises it in fee simple determinable, a possibility of reverter, which is a reversionary interest subject to a condition precedent, springs up. It arises without being created by any specific words in the will, and exists in the eligible heirs of the devisor while the fee simple determinable is outstanding in the devisee or his successors in interest, that is to say, until that estate ends by the happening of the stated event on which it is limited, or until that estate is converted into a fee simple absolute. Am.Law Inst. Restatement, Property, Vol. 1, sections 44, 58, and Vol. 2, section 154; Simes: Law of Future Interests, sections 177, 187; 19 Am.Jur., Estates, section 31. The term, "eligible heirs" does not refer to the heirs of the devisor in general. It embraces only those persons who would answer the description of heirs of the devisor at a particular time if the stated event terminating the fee simple determinable were then to occur. It necessarily follows that where an estate in fee simple determinable created by will is ended by the happening of the stated event limiting it, the property reverts in fee simple absolute to those who are heirs of the testator at the time when the estate terminates, and not to those who were heirs of the testator at any other time. Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863; Church of Henderson v. Young, 130 N.C. 8, 40 S.E. 691.

These things being true, a possibility of reverter arising on the creation of a fee simple determinable is not an estate in land, but is a mere possibility of acquiring an estate in land at a future time upon the happening of a condition precedent, i. e., the occurrence of the stated event on which the fee is limited. Mordecai: Law Lectures, *212 2d Ed., Vol. 1, page 498; Tiffany: Real Property, 3d Ed., section 314; Thompson: Real Property, Perm.Ed., section 2182; 33 Am.Jur., Life Estates, Remainders, Reversions, sections 204, 205, 206; 31 C.J.S., Estates, § 105.

In the creation of a fee simple determinable, the stated event, which operates to end the fee, may be either the occurrence of all of a combination of contingencies, or the happening of only one of two or more alternative contingencies. Christopher v. Wilson, 188 N.C. 757, 125 S.E. 609; Pilley v. Sullivan, 182 N.C. 493, 109 S.E. 359; Bell v. Keesler, 175 N.C. 525, 95 S.E. 881; Ham v. Ham, 168 N.C. 486, 84 S.E. 840, Ann.Cas.1917C, 301; Dickenson v. Jordan, 5 N.C. 380; Page on Wills, Lifetime Ed., section 1278; 69 C.J., Wills, § 1552. The doubleness of expression in the third item of the will leaves the meaning of the provisions for defeasance of the fee in Lot No. 3 of the Bloomsbury Property in doubt. A literal perusal of these provisions supports two conflicting conclusions: (1) That the testator intended the fee to be defeated in case the feme plaintiff either dies without having improved the lot by the erection of a dwelling house thereon, or dies without having issue living at the time of her death; and (2) that the testator intended the fee to suffer defeasance only in case the feme plaintiff dies without having improved the lot by the erection of a dwelling house thereon and also without having issue living at the time of her death. Consequently, the provisions for defeasance must be read so as to require both of the specified contingencies to occur before the fee of the feme plaintiff can be defeated; for this construction confines the operation of the provisions for defeasance to as early a period as the words of the will allow, and enables the estate of the feme plaintiff to become absolute as soon as the language of the will permits.

The plaintiff has improved Lot No. 3 of the Bloomsbury Property by the erection of a dwelling house thereon. Hence, both of the required contingencies can never occur. This being true, the stated event terminating her estate can not happen, and the feme plaintiff is now the absolute owner of the lot under the rule that a fee simple determinable is converted into a fee simple absolute when the event on which the determinable fee is limited becomes impossible of happening.

In construing the seventh item of the will, the court below committed an error similar to that which characterized its ruling upon the third item. The feme plaintiff took a fee simple determinable in the share of the residuary realty devised to her in the seventh item of her father's will, subject only to the preceding estate of her mother. Since the preceding estate has fallen in, the feme plaintiff now owns the share in fee, but such fee is determinable on her dying without having issue living at the time of her death.

We can not bring our consideration of the seventh item of the will to a close without referring to a contention of the plaintiffs. They say that the feme plaintiff is an heir of her father, the testator, and an heir of her predeceased brother, James Thaddeus Pace; that consequently parts of the possibility of reverter passed to her in these capacities under the laws of intestacy; and that such parts of the possibility of reverter merged with corresponding parts of her fee simple determinable, giving her title in fee simple absolute to a portion of the share devised to her in the seventh item.

This contention is engaging, but not convincing. It runs counter to the words of the will, overlooks the characteristics of the possibility of reverter, and ignores the conditions which call the doctrine of merger of estates in land into play.

The feme plaintiff is unquestionably an heir of the testator. But she is clearly not one of his eligible heirs. In the very nature of things, she can not possibly qualify as an heir of the testator at the happening of the stated event which may cut off her fee simple determinable; for such stated event is her own dying without having issue living at the time of her death. Hence, no part of the possibility of reverter has ever passed to the feme plaintiff. This conclusion finds implicit support *213 in the decisions of this Court in Burden v. Lipsitz, supra, and Church of Henderson v. Young, supra.

Moreover, the doctrine of merger does not apply in case a fee simple determinable and the possibility of reverter unite in the same person. Merger is the absorption of a lesser estate by a greater estate, and takes place when two distinct estates of greater and lesser rank meet in the same person or class of persons at the same time without any intermediate estate. Citizens Bank & Trust Co. v. Watkins, 215 N.C. 292, 1 S.E.2d 853. Since the whole estate in the land is in the tenant in fee simple determinable, and since the possibility of reverter is not an estate at all, there can be no merger of a fee simple determinable and the possibility of reverter because an essential prerequisite to merger, i. e., the coincidence of two independent estates presently held by one and the same person or class of persons, is necessarily absent. Adams v. Chaplin, 1 Hill Eq., S.C., 265.

This brings us to the appeal of the guardian ad litem, which calls in question the correctness of the adjudication of the trial court that the three pieces of realty bought by the executrix with funds derived from the sale of portions of the land mentioned in the fifth item of the will now belong to the feme plaintiff and the defendant, Louise P. Austin, in fee simple absolute, share and share alike.

Manifestly, these three pieces of realty are not "real estate not herein disposed of and not sold under the powers hereinbefore granted" within the purview of the seventh item of the will. When the executrix sold and conveyed portions of the Bloomsbury Property to third persons under the discretionary power of sale vested in her by the fifth item of the will, the land so sold and conveyed was actually converted into the money representing the sale price. Mills v. Harris, 104 N.C. 626, 10 S.E. 704; 18 C.J.S., Conversion, § 23. The executrix held this money in trust for investment in Liberty Bonds for the benefit of herself, the feme plaintiff, and the defendant, Louise P. Austin, in the manner specified in the fifth item. When the executrix used these fiduciary funds in the purchase of three pieces of realty and took a conveyance in her name as executrix, a resulting trust arose in the three pieces of realty in favor of the persons beneficially entitled to the funds with which they were purchased. Owen v. Hines, 227 N.C. 236, 41 S.E.2d 739; Jackson v. Thompson, 214 N. C. 539, 200 S.E. 16; Miller v. Miller, 200 N.C. 458, 157 S.E. 604; Kelly Springfield Tire Co. v. Lester, 190 N.C. 411, 130 S.E. 45. These considerations sustain the adjudication under present review.

For the reasons given, the action is remanded to the Superior Court on the appeal of the plaintiffs with directions that it modify the provisions of its judgment relating to the rights of the feme plaintiff in the property mentioned in the third and seventh items of the will so that such provisions will conform to this opinion. The judgment is affirmed on the appeal of the guardian ad litem.

Error on the appeal of the plaintiffs.

Judgment affirmed on the appeal of the guardian ad litem.