Opinion
(June Term, 1847.)
1. A testator devised "to my grandson, J. S., son of S. S., the tract of land I now live on, with the reserve and privilege of my son, S. S., the father of the said J., having the full privilege of the said land and all the profits arising therefrom during his natural life." In a subsequent clause he says: "I further give and bequeath all my lands that I am seized and possessed of at this time, or the profits arising therefrom, to my beloved wife during her natural life or widowhood; then for it to fall back to the said heir as above mentioned."
2. Held, that even if J. S. be the heir intended in the second clause of the will, yet he could only take the lands subject to the reservation in the first clause of a life estate to his father, and that he could not bring an action to recover the lands in the lifetime of the father.
APPEAL from GUILFORD Spring Term, 1847; Manly, J.
Joel Sullivan by his last will devised as follows: "I give and bequeath to my grandson, Joel Sullivan, son of Samuel Sullivan, the tract of land I now live on, supposed to be 163 acres, with the reserve and privilege of my son Samuel Sullivan, the father of the said Joel, having the full privilege of said land and all the profits arising therefrom during his natural life." By a subsequent clause he devises as follows: "I further give and bequeath all my lands that I am seized and possessed of at this time, or the profits arising therefrom, to my beloved wife, Elizabeth, during her natural life or widowhood, then for it to fall back to the said heir as above mentioned." The lessor of the plaintiff is the devisee, Joel Sullivan, the grandson, and the defendants the heirs at law, or a portion of them, of the testator. The lessor of the plaintiff claims the premises by virtue of the second clause, as being the heir referred to in it. The defendants contend that under that devise nothing passed but the life estate of the widow, for the reason that the individual (195) who is to take after her is so obscurely pointed out that it is impossible to say who was meant, and the devise, of course, fails for uncertainty. The plaintiff offered to prove by parol testimony that his lessor was meant by the testator to take in remainder after his grandmother, the widow. The widow is dead, and the testator left his son Samuel and several other children.
Morehead for plaintiff.
Mendenhall for defendant.
It is unnecessary for the Court to decide any of the questions raised in the argument of the case. Whether the heir mentioned in the second clause refers to the father Samuel or to the son Joel, or whether the devise fails altogether for uncertainty as far as the remainder is concerned, are questions which will be answered when a case is before us in which they necessarily arise. In this action they do not. If it be admitted, as the plaintiff contends, that he is the person meant by the testator by the word "heir," still he cannot maintain this action. We gather from the will that the testator owned other lands beside that mentioned in the first recited clause, and this other land is the subject of this suit. The plaintiff, if he be one of the persons meant in the second clause, must take this land, as he does the homestead, for the words are, after the death of the widow, "then for it to fall back to the said heir, as above mentioned." Now, under the first clause Samuel takes a life estate in the homestead, with remainder in fee to Joel Sullivan. The latter must take the additional land devised in the second clause (if at all) in the same way as he takes the homestead under the first, a remainder in fee after his father's life estate. We do not now decide who is or are meant by the testator by the word "heir"; all we decide is that if it be the lessor of the plaintiff, he cannot maintain this action, because the life estate of his father would precede his (196) remainder in fee, and it has not fallen in, Samuel Sullivan being still alive, as far as appears.
PER CURIAM. Venire de novo.