Opinion
December Term, 1836.
In England a limitation over upon a bequest of personality, in case the first legatee "shall die without leaving any issue," is good. The same words in a devise either reduces an estate in fee to one for life or enlarges an estate for life to an estate tail. In this State, since our act of 1784, abolishing entails, the same construction is put upon the words in both cases. The words, without having issue or children, clearly confine the time to the death of the legatee.
JACOB CLAPP died in the year 1826, having made and published his will, by which he devised his land to his two sons, and bequeathed pecuniary legacies to his two daughters. To all these provisions he added the following limitation: "It is my will that if any of (467) my children die without leaving issue or children, that what I have given them shall return, or its value, and be equally divided among all my children."
No counsel appeared for plaintiffs.
Iredell for defendant.
The defendant married one of the daughters, and received her legacy. She died without leaving children surviving her. The plaintiffs were the other children of the testator, and the bill set forth the above facts, and prayed an account and payment of the legacy.
The defendant, in his answer, insisted, first, that the legacy belonged absolutely to his wife, the limitation over being too remote; secondly, that if in this he was mistaken, that the plaintiffs had a plain remedy at law, and ought not to have filed this bill. His Honor, Judge Settle, at Guilford, on the last circuit, pronounced a decree according to the prayer of the bill, and the defendant appealed.
In the first place, the will, having been made before our act of Assembly of 1827 (ch. 7) was passed, is not to be construed by it, but is to be construed by those rules of law relative to the subject-matter as they existed before the passage of that act. The subject of the suit being personal property, the limitation over to the plaintiff would be good as an executory devise, by force of the words, "if any of my children shall die without leaving issue," if the additional words, "or children," had not been inserted; for these words shall be, as to personal estate, construed to mean a dying without leaving issue at the death of such child. The reason of which difference, in case of personal property, is in order to support the devise over, which otherwise would be too remote. The reason, wherefore, in England, in the case of a devise of lands to one, and if he die without issue or without leaving issue, shall reduce or enlarge his estate (468) to an estate tail, is because they are supposed to be inserted in favor of the issue, that they may have it, and the intent of the testator may take place by creating an estate tail. Thus we see the reason why a different construction is then put upon the same words in a will, where they relate to different species of property. Forth v. Chapman, 1 P. Wms., 663; Dansey v. Griffith, 4 Maule Selw., 62; Crooke v. De Vandes, 9 Ves., 197, 203; 2 Thomas' Coke, 762. In this State, since the act of 1784, there cannot be an estate tail; the same construction is put on words like these in devises of real property as, in England, obtains on bequests of personalty. Jones and Wife v. Spaight, 1 Car. Law Rep., 544. As to the second objection, without stopping to inquire whether the plaintiff could recover in assumpsit at law, this Court has always held the first taker, in a case like this, to be a trustee for the executory devisees when the contingency happened which caused these legacies to vest; and a court of equity, once having the jurisdiction, does not lose it by its being also assumed by a court of law. We are of the opinion that the decree in the Superior Court of Equity was correct and the same must be affirmed, with the cost of this Court.
PER CURIAM. Decree affirmed.
Cited: Ward v. Jones, 40 N.C. 406; Camp v. Smith, 68 N.C. 540.