Covenant on the obligation of the defendant's testator, which obligation is in the following words, to wit: *Page 110
STATE OF NORTH CAROLINA,} ss. Tyrrell County. }
With interest from the date, I promise to pay to Imri Spruill, guardian to Colin Spruill, the sum of $585.76, for the payment of which I bind myself, my heirs, executors, and administrators. Witness my hand and seal 30 January, 1834. WILLIAM SPRUILL. [L. S.]
The condition of the above obligation is such that if said William Spruill devises, at his decease, the plantation whereon Uzziah Spruill lived last, to Colin Spruill in fee simple, then this bond to be void; otherwise, to remain in full force and effect; or in case of the decease of the said Colin Spruill before said William Spruill, then said William Spruill is to devise said plantation to William Spruill, son of Imri Spruill. WILLIAM SPRUILL. [L.S.]
(146) The defendant pleaded, "General issue, conditions performed and not broken." The plaintiff proved the due execution of the bond and the death of the obligor. The defendant produced in evidence the will of the said obligor, dated 3 March, 1840, which had been duly proved, and which contained the following devise: "I give and devise unto my grandson, Colin E. Spruill, agreeably to the bond which I executed, the plantation whereon my son Uzziah Spruill lived, which is known by the name of the Ansley land, with all the lands that are attached thereto on the eastward side of the road; but on the westward side of the road he is not to reach or go; and in case Colin E. Spruill shall die without leaving a child or children living at his death, then I give, devise, and bequeath the said plantation to my grandson, William Spruill, son of Imri, and his heirs and assigns forever. I further give to my grandson, Colin E. Spurill [Spruill], a negro man named Squire, now in the possession of his guardian, to him, the said Colin E. Spruill, and his assigns forever." It was proved that Colin E. Spruill, the person for whose benefit the bond was given, had arrived at full age, and had under the devise in the will of said his grandfather taken possession of the land mentioned in the said devise, and that it was the same tract of land mentioned in the condition of the obligation; that the land was of the value of $2,000, and that the interest taken by the devisee Colin in the land under the devise in the will was of the value of $1,000. And it was insisted by the defendant's counsel that the devise was a performance of the condition of the obligation, and that the plaintiff was, therefore, not entitled to recover, or, if entitled to recover anything, he was only entitled to recover the difference between the value of the estate devised to him and the amount of money named in the obligation and interest; or, as the estate devised was equal to half the value of the land, *Page 111 the plaintiff was not entitled to recover beyond half the sum and interest mentioned in the obligation.
The court charged the jury that the devise was no performance of the conditions of the obligation; that the measure of damages to which the plaintiff was entitled was the difference between the (147) value of the estate devised by the defendant's testator and an estate in fee simple, but that the jury could not render damages beyond the amount of the bond and the interest thereon.
The jury returned a verdict for the amount of the bond and the interest thereon to the time of the verdict. Judgment being rendered pursuant to this verdict, the defendants appealed. The only question presented in this case is as to the nature and extent of the estate taken by the plaintiff in the land devised him by William Spruill, the defendant's testator. Is it such an estate as is described in the bond on which the action is brought? The condition of the bond is, if William Spruill devises at "his decease the plantation on which Uzziah Spruill lived last, to Colin Spruill in fee simple," etc. The words are precise and unaccompanied by any others calculated to obscure or throw doubt upon their meaning. William Spruill bound himself, under a penalty by his will, to give the specified land to Colin Spruill in fee simple. There is no dispute as to the land devised being that mentioned in the contract. Justice Blackstone defines a tenant in fee simple to be he who hath lands, tenements, or hereditaments to hold to him and his heirs forever, generally, absolutely, and simply. 2 Bl. Com., 105. So that upon his death, intestate, it shall go as the law directs, to his heir. Such was the estate which William Spruill contracted to devise to the plaintiff. Has he done so? The first part of the devise is to Colin Spruill of the land generally, and would, under our act of Assembly, assuredly pass the fee simple in the land to the devisee. Rev. Stat., ch. 122, sec. 10. But the statute in the same section provides that such shall not be the case when the devise shall show, or it shall plainly appear in the devise, or in some other part of the will, that the testator intended to convey an estate of less dignity. If the devise had stopped at the word "road," as there is no other clause in the will controlling the meaning of the preceding part, a fee simple would (148) have been conveyed to Colin Spruill. But the testator goes on to provide: "If Colin E. Spruill should die without leaving a child or children living at his death, then I give the said plantation to my grandson, William Spruill, his heirs and assigns forever." These words control and limit the preceding devise to Colin, so as to make that which would *Page 112 have been absolute, conditional upon the event of his dying leaving a child surviving him. Colin Spruill, under the devise, takes an estate in fee, defeasible upon the event of his death without leaving a child. If he die leaving no child, the inheritance does not descend to his heirs, but by the express provisions of the will it is taken from them and given to William Spruill. This devise to William Spruill is a good executory devise, and upon the occurring of the contingency transfers the estate to him and his heirs. Sheers v. Jeffery, 7 Term, 589; Eastman v. Baker, 1 Taunt., 174;King v. Frost, 3 Barn. and Al., 54. In the language of Chief Justice Abbott in the last case, it appears to me to have been the plain intention of the testator that at the period of the death of Colin E. Spruill it should be ascertained whether the estate devised to him by the will should then vest in him in fee absolutely, or pass on to some other person — his grandson, William Spruill. This is not the estate which the obligor William Spruill had bound himself to convey to the plaintiff. The condition of the bond, therefore, has not been by him performed. The plaintiff is entitled to his action.
The case further states that upon the death of William Spruill, the testator, the plaintiff took possession of the land devised to him, and that his interest in it is equal to the penalty of the bond. It appears likewise from the will that the testator bequeathed to the plaintiff a negro. It is not for us to decide, sitting as we are as a court of law, what a court of equity could or would do. We have no power here to put the plaintiff to his election to take either his bond or the land and negro. Nor does it make any difference, so far as the decision of the case is concerned, that Colin Spruill is still alive, and may have (149) or leave a child or children surviving him, in which case his estate, which is now defeasible, will become indefeasible. Our only inquiry is, Has the condition of the bond been broken? We are clearly of opinion that it has, and that a present right of action on the bond has accrued to the plaintiff.
We entirely agree with his Honor, who tried the case in the Superior Court, both as to the true construction of the devise and as to the principle upon which the plaintiff's damages are to be assessed.
PER CURIAM. No error.