Sueanne M. JERNIGAN (unmarried), Plaintiff,
v.
Maxine Core LEE et al., Defendants.
No. 13.
Supreme Court of North Carolina.
July 30, 1971.*354 Britt & Ashley, Smithfield, for plaintiff appellee.
Levinson & Shaw, by Joseph H. Levinson, Benson, for defendant appellants.
SHARP, Justice.
Title to the land in dispute depends upon the construction to be put upon items 2 and 4 of testatrix's will. In effect, this devise is to O. D. Stewart and his heirs in fee, but if he dies "without issue or heirs by him begotten," then to Meta Stewart in fee; and if she die without "any heir of her body living at her death, then to Berry Jernigan and his heirs, if any, otherwise to his next of kin, who may be living at his death."
It is quite clear that by this devise O. D. took a fee simple defeasible upon his death without surviving issue, and that Meta took an executory interest contingent upon the death of O. D. without surviving issue. When O. D. died without issue in 1946 Meta took a fee simple defeasible upon her death without surviving issue. "[I]t has been held since very early after the statute of uses that a fee simple may be limited after a fee simple either by deed or will; if by deed, it is a conditional limitation; if by will, it is an executory devise." Smith v. Brisson, 90 N.C. 284, 289 (1884). Accord, Scott v. Jackson, 257 N.C. 658, 127 S.E.2d 234; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662; Murdock v. Deal, 208 N.C. 754, 182 S.E. 466; Kirkman v. Smith, 174 N.C. 603, 94 S.E. 423; Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863; Myers v. Craig, 44 N.C. 169; Smith v. Brisson, supra; Garland v. Watt, 26 N.C. 287; 7 N.C. Index 2d, Wills § 36 (1968); 28 Am.Jur. 2d Estates § 363 (1966).
Meta's estate ended in July 1968 when she died without surviving issue. At that time the devise "to Berry Jernigan and his heirs, if any, otherwise to his next of kin, who may be living at his death" became effective. What did testatrix intend by this language? We hold that she intended to devise to Berry the same estate which she had given the two preceding deviseesa fee defeasible upon death without surviving issue. Properly interpreted, this devise is to Berry and his heirs and, if none at his death, to his next of kin then living. In Massengill v. Abell, 192 N.C. 240, 134 S.E. 641, a practically identical devise was held to be a fee defeasible upon the death of the devisee without issue.
In construing a will the court considers the entire instrument and seeks to ascertain from it the testator's intent. To effectuate the intention of the testator the court may transpose or supply words, phrases and clauses when the sense of the devise in question "as collected from the context manifestly requires it." Entwistle v. Covington, 250 N.C. 315, 319, 108 S.E.2d 603, 606; 7 N.C. Index 2d, Wills § 28 (1968). We can detect no intent to create "a potential tenancy in common" *355 between Berry and his children in a devise "to Berry Jernigan and his heirs, if any, otherwise to his next of kin who may be living at his death." On the other hand, the devise to Berry of a fee, defeasible upon his death without surviving issue, completes testatrix's plan which gave to each named devisee a fee determinable upon identical condition. See Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; Starnes v. Hill, 112 N.C. 1, 16 S.E. 1011.
At the time of Berry's death his daughter, the plaintiff, survived him. Had Berry survived both O. D. and Meta there can be no doubt that, upon his death with issue surviving, his defeasible fee would have become a fee simple absolute; that his 1939 deed would have then passed the unqualified fee to the heirs of O. D. Stewart, and that plaintiff, as Berry's heir, would be estopped by his deed. Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485. The interest which Berry had in 1939 was at that time "alienable, devisable, and inheritable." 31 C.J.S. Estates § 122 (1964).
"[E]xecutory devises are not considered as mere possibilities, but as certain interests and estates." Fortescue v. Satterthwaite, 23 N.C. 566, 570 (1841). A long line of decisions by this Court establishes that contingent interests, such as contingent remainders, springing uses, and executory devises may be "sold, assigned, transmitted, or devised" provided the identity of the persons who will take the estate upon the happening of the contingency be ascertained. Newkirk v. Hawes, 58 N.C. 265; Bodenhamer v. Welch, 89 N.C. 78; Wright v. Brown, 116 N.C. 26, 22 S.E. 313; Cheek v. Walker, 138 N.C. 446, 50 S.E. 863; Beacom v. Amos, 161 N.C. 357, 77 S.E. 407; Hobgood v. Hobgood, 169 N.C. 485, 86 S.E. 189; Lee v. Oates, 171 N.C. 717, 88 S.E. 889; Malloy v. Acheson, 179 N.C. 90, 101 S.E. 606; Woody v. Cates, 213 N.C. 792, 197 S.E. 561; Thames v. Goode, supra; Simes and Smith, Future Interests § 1859 (2d ed. 1956). "They may be assigned * * * both in real and personal estate, and by any mode of conveyance by which they might be transferred had they been vested remainders." Fortescue v. Satterthwaite, supra, 23 N.C. at 570; 28 Am.Jur.2d, Estates §§ 317, 371 (1966).
The rule established by the foregoing decisions was incorporated in G.S. § 39-6.3 enacted in 1961 and applicable only to conveyances operative on or after 1 October 1961.
Did Berry's death prior to the termination of the two defeasible fees which were interposed before his executory devise defeat the estate he would have taken had he survived them? In other words, was his power to convey his interest dependent upon his surviving the two preceding devisees? The answer is NO.
Decisions of this Court hold that "the interest in an executory devise or bequest is transmissible to the heir or executor of one dying before the happening of the contingency upon which it depends." (Emphasis added.) Seawell v. Cheshire, 241 N.C. 629, 637, 86 S.E.2d 256, 261. This question was squarely decided in Moore v. Barrow, 24 N.C. 436, wherein Ruffin, C. J., said: "That contingent interests of this description are transmissible to executors, and are not lost by the death of the person before the event happens on which they are to vest in possession, though once doubted, has long been settled." Id. at 439. Accord, Lewis v. Smith, 23 N.C. 145; Sanderlin v. Deford, 47 N.C. 74; Newkirk v. Hawes, supra; Kornegay v. Miller, 137 N.C. 659, 50 S.E. 315.
Of course, the foregoing rule is dependent upon the nature of the contingency involved; and also, the grantee of a future interest takes it subject to the same conditions or contingencies imposed upon his grantor. "An executory devise can only be destroyed by a failure of the contingency upon which it is to take effect." *356 4A Thompson on Real Property § 2007 (1961). Thus, if the devisee of a fee with an executory devise over in the event he dies without issue conveys his interest and thereafter dies without lineal descendants, the estate of his grantee ends with his death; on the other hand, if he is survived by issue, an estate in fee simple absolute vests in his grantee. Elmore v. Austin, supra; Kornegay v. Miller, supra; Bodenhamer v. Welch, supra; Simes & Smith, Future Interests, § 1865 (2d ed. 1956). The determinable quality of the fee of the first taker follows any transfer he may make, and the grantee can take no greater estate than that possessed by his grantor. 4A Thompson on Real Property § 2007 (1961). It therefore follows that if the vesting of an estate is conditioned upon a devisee's survival to a given time or event, his death prior thereto will defeat his estate and any attempt he may have made to transfer.
In this case the testator did not condition Berry's fee upon his surviving O. D. and Meta. Berry's estate was made to depend (1) upon the prior deaths of both O. D. and Meta without issue and (2) upon his own death with issue. When Meta died without issue these two conditions were met and the estate in fee simple absolute, which would have vested in Berry had he been living, vested by substitution in the heirs of O. D. Stewart under the 1939 deed from Berry to O. D. Therefore the title to the real estate involved is adjudged to be in the defendants. Tapley v. Dill, 358 Mo. 824, 217 S.W.2d 369.
The decision of the Court of Appeals is reversed with directions that the cause be returned to the Superior Court for the entry of a declaratory judgment construing the will of Leacy Jernigan Stewart in accordance with this opinion.
Reversed and remanded.
LAKE, J., dissents.