E. Pearl SEAWELL, L. Shell Jones, J. Craige Jones, John Wesley Hartsfield, Mabel Hartsfield, Louise H. Johnson, Susie M. Hartsfield, Nina H. Grimes, Richard D. Hartsfield, John Hartsfield, Mary H. Jones, David M. Harris, Mary L. Harris, Jenny B. Hartsfield, Jenny M. Hartsfield, William Hartsfield, Charles Hartsfield, Maude B. Hartsfield, Jacob A. Hartsfield, III, Mabel H. Holton, and Marshall B. Hartsfield, Nellie M. Scarlette, May S. Myatt, William A. Myatt, Betsy Higgins, Harriet Alexander Myatt, Dotty Yingland, Margaret Myatt Edmundson, Pearle Scott Hood, Mildred M. Aycock and Robert L. Myatt, Plaintiffs,
v.
Joseph B. CHESHIRE, Successor Trustee under the Will of B. S. Harrison (deceased), and Ann Harrison, Executrix of the Estate of Edwin M. Harrison (deceased), and Ann Harrison, Individually.
No. 451.
Supreme Court of North Carolina.
March 23, 1955.*260 Allen Langston, Raleigh, for appellant Ann Harrison.
Mordecai, Mills & Parker, Poyner, Geraghty & Hartsfield, Raleigh, Bell, Bradley, *261 Gebhart & DeLaney, Charlotte, for plaintiffs-appellees.
Harris, Poe & Cheshire, Raleigh, for defendant-appellee.
WINBORNE, Justice.
The appellant states in brief filed in this Court two questions as being involved on this appeal. The first reads as follows: "Should the residue of the trust estate created under the will of B. S. Harrison, deceased, be now paid over to the executrix of the will of Edwin Marriott Harrison, the only son, and sole surviving heir at law of the testator, or should it be paid to the descendants and collateral heirs of persons named by the testator to take by conveyance to be made by the trustees after the death of testator's son without lawful issue?"
This question raises the basic inquiry as to what interest or estate, if any, did Mrs. Octavia Carver, Ham T. Jones, John W. Jones and Jacob A. Hartsfield acquire under the provisions of the will of B. S. Harrison.
In this connection, it is noted that V. S. Harrison, the wife of B. S. Harrison, having dissented from his will, relinquished thereby all benefits provided for her thereunder, and the entire balance of the estate became impressed with the trust as set out in paragraph 2 of Item 3 of the will.
And in accordance with the provisions of paragraph 2 of Item 3 of the will the testator declared that the trustees would "hold the remaining" part "of my estate * * * to the use and benefit of my son Edwin M. Harrison, during his natural life * * * and after his death convey what may be in their hands to his children, if he have lawful issue, in fee, but if he have no lawful issue, then convey two-fifths thereof to Mrs. Octavia Carver * * * and one-fifth each to Ham T. Jones, John W. Jones and Jacob A. Hartsfield, respectively, in fee."
Therefore, in the light of decisions of this Court, these provisions of the will of B. S. Harrison "created a contingent executory devise, after a fee conditional", for the benefit of Mrs. Octavia Carver, and Ham T. Jones, John W. Jones and Jacob A. Hartsfield if Edwin M. Harrison have no lawful issue at his death. Sain v. Baker, 128 N.C. 256, 38 S.E. 858, 859. In the Sain case, Clark, J., speaking for the Court of a like factual situation, declared that: "This limitation over is not void for remoteness, and took effect at the death of devisee, Wesley Leonhardt, without issue, by virtue of the act of 1827". This act was Chapter 7, later codified as R.C. Chap. 43, § 3, Code of 1883, Vol. 1, § 1327, Revisal 1581, C.S. § 1737, and now G.S. § 41-4. In the instant case Edwin M. Harrison occupies similar position to that of Wesley Leonhardt.
The 1827 Act, supra, provides that: "Every contingent limitation in any deed or will made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children, or offspring, or descendant, or other relative, shall be held and intrepreted a limitation to take effect when such person dies not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it * * * ". And in case in hand no such intention appears so expressly and plainly declared. This statute has been construed and applied in many decisions of this Court. They are cited and discussed by Clark, C. J., in Patterson v. McCormick, 1919, 177 N.C. 448, 99 S.E. 401, and by Denny, J., in House v. House, 1949, 231 N.C. 218, 56 S.E.2d 695.
Indeed 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. Lewis v. Smith, 23 N.C. 145; Fortescue v. Satterthwaite, 23 N.C. 566; *262 Moore's Adm'r v. Barrow's Adm'r, 24 N.C. 436; Weeks v. Weeks, 40 N.C. 111; Sanderlin v. Deford, 47 N.C. 74, 75; Newkirk v. Hawes, 58 N.C. 265; Mayhew v. Davidson, 62 N.C. 47. See also Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 34, 65 S.E.2d 317, and cases cited.
In the Fortescue case, supra, referring to a cited case, it is said: "* * * The judges seem to have considered it as settled that contingent interests, such as executory devises to persons who are certain, were assignable. They may be assigned both in real and personal property, and by any mode of conveyance by which they might be transferred had they been vested remainders."
Also in the Mayhew case, supra, it is said: "We have here then a contingent limitation, where the persons are certain and the event uncertain. Interests of this sort, if in land, are transmissible by descent; if in personalty, devolve upon the personal representative", citing the Newkirk case, supra.
In the Moore case, supra, the will of E. Barrow, who died in 1832, was involved. In it he declared, "I lend my daughter Nancy E. Moore" the following property, to wit: (Slaves and articles of furniture), and, continuing, "If my daughter Nancy E. should depart this life without issue, then it is my will that her husband, William C. Moore, should have one-half of the property I have lent to her; but the property is to be held in trust by my executors until the death of my daughter Nancy E., and then her half of the property is to be equally divided between her brother Joseph and her two sisters, Martha and Rachel." William C. Moore died in 1838 after the testator, leaving his wife Nancy surviving him, and then Nancy died in 1839, having made a will, but without issue. The administrator of William C. Moore brought suit to recover one-half of the property. This Court held that William C. Moore took a contingent interest in remainder in one-half of the property, which upon his death was transmitted to his administrator, and that upon the death of Mrs. Moore, without issue, his administrator had a right to recover it. And Ruffin, C. J., writing for the Court, said: "The limitation over after the death of the first taker `without issue' is within the letter of the act of 1827 (Rev. Stat. Chap. 122, Sec. 11) and is made effectual by it * * * The gift over to the husband, brother, and sisters of Mrs. Moore is simply on the contingency of her `dying without issue', and it is not to him or them `if then living', or `to such one or more of them as might be then alive'. Consequently, as Mrs. Moore never had issue, and is now dead, the legacy has become absolutely vested. 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" (citing cases).
And in Wachovia Bank & Trust Co. v. Waddell, supra [234 N.C. 34, 65 S.E.2d 319], Barnhill, J., speaking to a like situation to that in hand, said: "To ascertain who are the ultimate takers, the roll must be called as of the day of the death of the last surviving life beneficiary * * *", citing G.S. § 41-4 and cases.
Moreover, in respect to the claim of Ann Harrison, wife of Edwin M. Harrison, and executrix of his will, this headnote in Sain v. Baker, supra, epitomizing the opinion, is appropriate: "When a testator devises land to his son with a limitation over to his daughters, provided the son dies without heirs, the son dying without children, cannot by will give his wife a life estate with the remainder to a third party."
Therefore, the conclusions of law numbered 1 and 2, as set forth in the judgment below, are proper, and are hereby affirmed.
The second question stated by appellant is as follows: "Is the defendant, Ann Harrison, as executrix of the will of Edwin Marriott Harrison, entitled to recover from the trust estate the costs of administration of the trust estate which have been *263 charged entirely to income and not to principal?"
In the light of the findings of fact set forth in the judgment as shown in the record on appeal, this Court is of opinion, and holds that conclusions of law numbered 3 and 4 as set forth in said judgment are proper, and are hereby affirmed.
The Court has given careful consideration to the argument of counsel for appellant, as well as to all citations of authority. However, they are deemed inapplicable to the factual situation in hand.
Therefore, the judgment from which appeal is taken is
Affirmed.