We conclude, therefore, in this case, that John Foley took a contingent remainder, which vested in him at the death of the testator as a right according to its character, and which descended to his heirs, so that, upon the death of Margaret, leaving no issue, the estate vested in the defendants. The objection to the allowance in addition to costs presents no question for our review.

Judgment affirmed.

Whitesides V. Cooper

115 North Carolina, 570 - 1894.

Action by plaintiffs to be let into possession as tenants in common with defendants of one-sixth undivided interest in the premises in dispute. Plaintiffs are the children of S. J. Whitesides, who, supposing himself the owner of a vested interest in the lands, had sold them to one Kimberly, and then, under a partition sale, they had passed to defendants. Further facts appear in the opinion.

Shepherd, C. J. - The numerous authorities cited in the elaborate brief of the defendant's counsel fail to convince us that we are warranted in so far departing from the plain and natural import of the language used in the limitation before us as to hold that the seven sons named in the will of their father took a vested remainder in the land therein devised. Fully appreciating, as we do, the public policy which induces the courts to favor the early vesting of estates, we are, nevertheless, of the opinion that it would be doing violence to the most liberal rules of construction were we to say that it was the intention of the devisor that the estates limited to his said sons should vest before the death of his widow, the life tenant. On the contrary, it was his evident purpose that the entire remainder in fee should be disposed of absolutely at a definite time, and that he did not intend that the remainder, as to any part of the property, should become vested while the remainder in the residue was dependent upon a contingency.

After a limitation to the wife for life, the will proceeds as follows: "At the death of my said wife, the said plantation, with all its rights and interests, I bequeath and devise to our seven sons, namely, Henry Clay, James Hardy, Charles Lincoln, Frank Patton, Simpson Jarrett, William Ratliff, and John Bowman, or such of them as may be living at their mother's death, and to their heirs, share and share alike; and if any one or more of our said sons should be dead, leaving lawful issue, said issue shall take the deceased father's share in each and every such case."

The words we have italicized very clearly do not divest, by way of condition or otherwise, any estate previously limited, but are manifestly used as a part of the description of the persons who are to take; and these persons are plainly such only of the sons as may survive the life tenant. In other words, the limitation, with a very slight transposition of the words, reads, " To such of my sons, Henry Clay, James Hardy, etc., as may be living at their mother's death, and to their heirs." If the language indicating survivorship were at all doubtful, the construction we have adopted would be well sustained by the fact that the words of inheritance do not immediately follow the names of the seven sons, but they follow the qualifying language," such of them as may be living at their mother's death."

Under the construction we have put upon the will, there can be no question that the limitations to the sons were contingent remainders, the contingency being that they should survive their mother, and failing in this, as to any one or more of them, the remainder to vest in his or their issue, as purchasers. This, as we have said in Watson v. Smith, no N. C. 6, is a limitation of several concurrent fees by way of substitutes or alternatives, one for the other, "the latter to take effect in case the prior one should fail to vest in interest, and is known as a remainder on a contingency with a double aspect." If one of these die before the mother, his remainder is at an end, and can never vest, and another remainder to the issue is substituted, who take nothing from their father, but directly from the devisor.

That the limitation, under the construction we have adopted, is a contingent remainder is apparent from the decisions of this court, and these decisions, it is believed, are in harmony with the principles of the common law as enunciated by the most approved authorities in other jurisdictions. In Starnes v. Hill, 112 N. C. 1, and Clark v. Cox, at this term, we quoted with approval the language of Mr. Gray in his excellent work on Perpetuities, " that the true test in limitations of this character is that if the conditional element is incorporated into the description of the gift to the remainderman (as it is in the case under consideration), then the remainder is contingent, but if after the words giving a vested interest a clause is added divesting it, the remainder is vested. Thus, on a devise to A. for life, remainder to his children, but if any child die in the lifetime of A. his share to go to those who survive, the share of each child is said to be vested, subject to be divested by its death. But on a devise (as in the present case) to A. for life, remainder to such of his children as survive him, the remainder is contingent."

In Watson v. Watson, 3 Jones, Eq. 400, the devise was to A. for life, and at his death to such of his children as might then be living, and the issue of such as might have died leaving issue. It was held that A. was tenant for life "with a contingent remainder in fee to his children who may be living at his death, and to the issue of such children as may have died in his lifetime, leaving children. See, also, Watson v. Smith, no N. C. 6.

In Williams v. Hassell, 74 N. C. 434, the court said, "inasmuch as the lands are devised to the first takers for life only, with remainders to such of their children as should be living at their death, it cannot be ascertained now who are to take the remainder."