4. Neither is there any force in the contention that our case falls within the principle of England v. Garner, 90 N. C. 197, and other decisions in which the court has gone very far in sustaining judicial sales. It is not pretended that these plaintiffs, even if in esse, were represented by guardian or any one claiming to be their attorney. Indeed, they are not mentioned as parties in any stage of the proceeding, nor is there anything in the decree which purports to bind their contingent interests.
5. As to the statute of limitations, it is only necessary to say that it did not begin to run against these plaintiffs until the death of the life tenant in 1887. Their rights accrued only upon that event, and it is therefore clear that they are not barred.
After a careful consideration of the elaborate brief of counsel, we have been unable to discover any error in the rulings of his Honor.
82 Georgia, 13. - 1888.
One L. S. Morse conveyed certain premises to his stepmother, Anna Morse, as her separate estate for life, and after the death of said Anna Morse gives "said property * * * to such of the children of said Anna Morse by her present husband as may be living at her death, and the representative of such as may be dead, in fee, the representative to take the share these deceased persons would have been entitled to, had he or she been alive; but if the said Anna Morse should die without child or children, or the representative of either, then the whole of the above-named property, with the increase, I give unto the said Oliver Morse [her husband] in fee simple." Daniel Morse, the only child of Oliver and Anna, was living when the deed was made. Daniel died in 1868, and thereafter Oliver made a will giving all his property, present and expectant, to Anna. Oliver soon thereafter died, and Anna made a will giving all her property to her sister, Mrs. Proper. Anna having died, L. S. Morse brings this action to prevent Mrs. Proper from interfering with the property in question.
Decision below for Mrs. Proper. Morse appeals.
Simmons, J. - * * * The question for decision in this case is, whether Oliver Morse had such an interest in this property at the time of his death, in 1868, as he could transmit by will to his wife. If he did have such a devisable interest, having devised it to his wife, and his wife having devised it to her sister, the defendant in error here, the chancellor was right in refusing the injunction. It will be remembered that the deed from L. S. Morse to Anna Morse gave her this property for and during her natural life, and after her death it was to go to her children or the representatives of the children; and in case she died leaving no children or representatives of children, the property was to go to Oliver Morse, in fee. In our opinion, Oliver Morse, under this deed, took a remainder interest in this property. Was it vested or a contingent remainder? The plaintiff in error contended that it was a contingent remainder, and that the contingency was as to the person, and therefore Oliver Morse, under section 2266 of the code, had no such interest in the property as he could devise to his wife. Counsel for the defendant in error contended (1) that Oliver took a vested remainder, under the deed made in 1855, (2) but that if it was a contingent remainder, the contingency was as to the happening of an event, and not as to the person, and therefore he had a right to devise it. This case was ably argued by counsel on both sides, and we have given it a great deal of consideration, and we think that Oliver Morse had such an interest in this property as he could devise to his wife; and therefore the chancellor was right in refusing the injunction. We think that under the deed he took a contingent remainder, and the contingency was as to the event and not as to the person The language of the code on this subject is as follows, § 2265: " Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen." § 2266: " If the remainderman dies before the time arrives for possessing his estate in remainder, his heirs are entitled to a vested remainder interest, and to a contingent remainder interest when the contingency is not as to the person but as to the event." The deed in this case declares that " if the said Anna Morse should die without child or children or the representative of either, then the whole of the above named property, with the increase, I give unto the said Oliver Morse in fee simple." We think the contingency depended on the event of Anna Morse dying without children or the representative of children. The deed means, in our opinion, that in the event, or in that case, or when that particular thing should happen, Oliver Morse should take the property in fee. There was no uncertainty as to who should take if there were no children or representative of children, living at the time of her death. The person to take in that event was certain, and was fixed by deed. In case there were no children or representatives of children living at the time of Anna's death, the deed points unerringly to the person who would take, and declares that he should take in fee simple, which, under our law, means not only himself but his heirs and assigns. If the deed had said that in case Mrs. Morse died without children or representative of children, then to the heirs or right heirs of Oliver Morse, the person to take in that event would have been uncertain ; or if it had said, in case of Mrs. Morse dying without children or representative of children, to the heirs of John Smith, the persons to take would have been uncertain; but as we have said before, the deed does not leave it uncertain who is to take in the event she died without children or representative of children. It seems that in that case, Oliver Morse is to take in fee simple. Oliver Morse having a contingent remainder interest in this property, did he have a right to dispose of it by will to his wife? We think he did. The old doctrine was, that contingent remainders were not devisable by the person entitled thereto; but that doctrine was abandoned many years ago, and it is now held almost universally that a contingent remainder is devisable where the contingency is not as to the person but as to the event. Indeed, that is the principle announced in our code, §2266. That section declares that if the remainderman dies before the time arrives for possessing his estate, his heirs are entitled to a contingent interest, when the contingency is not as to the person but as to the event. If the contingency be as to the person, and that person be not in esse at the time when the contingency happens, his heirs are not entitled. It is contended by counsel for the plaintiff in error that the latter part of this section controls the case; but we think we have shown that the contingency was not as to the person, but as to the event; and therefore the latter part of the section does not apply to this case.