DEN ON DEM. OF THOMAS BRANTLEY & AL. vs. WILSON C. WHITAKER.
A. By will executed in the year 1803, (in which year he died) devised land to his two daughters H. B. and S. B., to them and their heirs," and if they should die without an heir, then to his wife B" The daughters died without issue. Held that the limitation over was too remote, the will having been made before our act of 1827.
Appeal from the Superior Court of Law of Halifax County, at the Fall Term, 1844, his Honor Judge Caldwell presiding.
This was an action of Ejectment, in which, under the instruction of the court, the jury found a verdict for the plaintiff. Judgment being rendered accordingly, the defendant appealed.
The facts are stated in the opinion delivered in this court.
B. F. Moore for the plaintiff. Attorney General for the defendant.
DANIEL, J. - In the year 1803, Robert R. Brantley made his will and died. He devised the land in controversy to his wife Bethur Brantley, during her widowhood, and on the event 28 Dec. 1844 of her marriage, (which event happened) then over to his two Brantley daughters, Harriet Brantley and Sarah Brantley, to them and to their heirs," and if they should die without an heir, then to return to my wife Bethur Brantley." The two daughters have died without issue, and the lessors of the plaintiff are their heirs at law. The defendant claims title under Bethur Brantley. The two daughters took a fee simple in the land as tenants in common, and the question is, whether the executory devise over to Bethur Brantley, on the death of the two daughters without an heir, is, or is not too remote and void. If the limitation over had vested on the event that the two daughters died without children, it would have been a good limitation, as that event must necessarily have been known during the life or lives of persons in being, or twenty-one years thereafter. But the word heir, used by the testator, cannot be construed children, as there is nothing in the will to authorize us to change its technical signification. By the will, Bethur Brantley was not to take the land, as long as there was a person or persons to be found, who could entitle himself or themselves to the character of heir or heirs to the two deceased daughters. Such persons may perhaps be found long after the death of the two daughters, for the collateral relations of the two daughters would be their heir or heirs ad infinitum. And until such collateral stocks should become exhausted, Bethur Brantley never could take, by the very terms of the will. The present lessors of the plaintiff are now heirs to the two daughters. The limitation over to Bethur Brantley is too remote, and is therefore void. The will was made before our act of Assembly on the subject.
Per Curiam, Judgment affirmed.
Source: Results of Cases Argued and Determined in the Supreme Court of North Carolina, From December Term, 1844 to June Term, 1845, Both Inclusive, Volume 25, Section 5, by James Iredell, Reporter, published,1845; Pgs. 225-226