In a considerable class of cases a devise or bequest of what shall remain or be left at the decease of the prior devisee or legatee has been held to be void for uncertainty. Bland v. Bland, 2 Cox, 309; Wynne v. Hawkins, 1 Bro. C. C., 179; Sprague v. Barnard, 2 Bro. C. C., 585; Pushman v. Filliter, 3 Ves., 7; Wilson v. Major, 11 Ves., 205; Bull v. Kingston, 1 Mer., 314; Eade v. Eade, 5 Madd., 118. But it may be remarked that where a part of the (427) property comprised in such a gift consists of household furniture, or other articles of a perishable nature (as in this case), these words may fairly be considered as referring to the use and wear by the first taker. Such, it is clear, would be the construction if it were limited to him expressly for life. Powell on Devises, 352 (Jarman note). Indeed, there is not any case in which such expressions have been held to render the gift void where the interest of the first taker was so limited for life, and Cooper v. Williams, Pre. Ch., 71, pl. 64, is an authority against such a construction. We therefore are of opinion that the widow had but a life estate in the slaves. *Page 347
Secondly. We are of opinion that the testator's son, Alexander, did not take a vested interest in remainder in this property. The remainder in the land, and the executory devise in the personal property, were contingent, dependent upon the event of Alexander dying before his mother and leaving children who should survive her. Alexander died in his mother's lifetime; he was not entitled to any of the estate, as nothing vested in him. The two plaintiffs (sons of Alexander) may die before their grandmother; but if they do not, the whole estate will vest in them on the determination of her life. The context of the will shows that the testator used the words "lawful heirs" of Alexander as synonymous with the word children of Alexander. It says if Alexander shall die childless, then the remaining property, after the death of his wife, shall be sold to maintain the preachers. We therefore think the plaintiffs had a right to file this bill.
Upon the evidence, connected with the admitted facts that the widow has set up a claim to the absolute disposition of the slaves, and has actually sold some of them, this is a proper case in which security should be required for the forthcoming of the negroes, if alive, at the death of the widow, or to abide the future order of the court. The clerk of the Court is directed, therefore, to inquire and report as to the value of the said slaves, what security has been already taken, and what further security may be necessary. And the further consideration of the case is reserved.
PER CURIAM. Decree accordingly.
Cited: Hailes v. Ingram, 41 N.C. 477.
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