#### OXFORD ORPHANAGE (Successor to OXFORD ORPHAN ASYLUM), v. J. C. KITTRELL, MRS. LELIA (LELA) MOSS, et al.

(Filed 13 October, 1943.)

1. Estates §§ 6, 9a, 9c: Wills § 33c: Trusts § Id—

Where testator devised realty to his wife and another for life, remainder to plaintiff, a charitable corporation, to have and to hold, and use and apply after paying upkeep, to its maintenance, but should plaintiff refuse this gift or devise or later reject it, then to testator’s heirs, and life tenants, who are now dead, allowed the property to deteriorate very *428badly and some of it burned, all without action for waste by plaintiff, who has sold and leased some of the property and contracted to sell the remainder, there is no forfeiture, abandonment, refusal or rejection of the property. The gift is not a charitable trust but is a fee simple remainder, subject to reverter upon a failure to accept or a rejection after acceptance, and plaintiff is free to sell in its discretion.

3. Estates § 9c—

A remainderman has a right to proceed against the life tenant for waste, but this right is optional.

3. Abandonment § 1—

Abandonment is the giving up of a thing absolutely, without reference to any particular iierson or purpose, and includes both the intention to relinquish all claim to and dominion over the property and the act by which this intention is executed. There can be no abandonment in favor of an individual or for a consideration, as such an act would be a gift or sale.

4. Deeds § 14b: Estates § 6—

A clause in a conveyance will not be construed as a condition subsequent unless it expresses, in apt and appropriate language, the intention of the parties to. that effect, and a mere expression of the motive inducing the grant, or a statement of the purpose for which the property is to be used, is not sufficient to create such condition.

Winborne, J., took no part in the consideration or decision of this case.

Appeal by defendants, *heirs*at law of John R. Moss, from *Dixon, Special Judge,*at March Term, 1943, of VaNce.

Affirmed.

Civil action under the Uniform Declaratory Judgment Act.

The plaintiff contracted to sell to J. C. Kittrell a certain parcel of land in Henderson, Nance County, N. C., which is a part of the devise to it in remainder under the will of John R. Moss. Kittrell refused to comply with his contract for that he was advised that under the terms of said will plaintiff could not convey a good and marketable title. Thereupon, plaintiff instituted this action against Kittrell and the heirs at law of John R. Moss for a decree construing said devise and adjudicating the respective rights of the parties in the *locus in quo*and under the contract of purchase and sale.

John R. Moss died 2 May, 1913, possessed of certain lands in Henderson, N.' C. He left a last will and testament in which, after making certain specific gifts, he devised the remainder of his real estate to his wife for life with remainder to the Oxford Orphan Asylum (now Oxford Orphanage). The gift in remainder is in the following language:

“After the death of my wife and Mr. Yivian, I give, devise and bequeath all my real estate to the Oxford Orphan Asylum for the white race situate at Oxford, North Carolina, and to have and to hold and use *429and apply tbe same in so far as it will go after paying for keeping it in repair, for tbe maintenance of said institution. Should it refuse this gift and devise or later reject it because it might prove unprofitable or for any other cause, then and in that event I revoke and cancel this devise to it and give, devise and bequeath said real estate to my heirs at law.”

Arthur Vivian, named in the devise, has been dead for some years, and Mrs. Lelia Moss died 25 December, 1942, after the institution of this action.

At the time of the testator’s death there were six buildings on the property at North Henderson and some sixteen or seventeen on the other property. Three of the buildings at North Henderson were sold by the executrix to pay debts of the estate. Fire destroyed five of the buildings on the Young Street front, and the other buildings were removed from the property because they had become untenantable and were fire hazards.

At present there are five houses on the Ohestnut-Young-G-ary-Peace streets property, and two small dwellings and a small store building on the North Henderson lot. All the buildings except one are old, badly deteriorated, and have small rental value.

The plaintiff at various times from 31 March, 1930, to 25 August, 1940, paid taxes, insurance, and street assessments on a part of the property in the total sum of $523.45.

On 15 October, 1917, the life tenant leased the property to one Ross for a stipulated rent and the agreement to keep the property in tenant-able repair and to pay one-half of the taxes. This lease was sold to one Beck. In 1932 the life tenant brought suit against Beck for damages for waste and destruction and for breach of the condition to keep the property in tenantable repair. Plaintiff, on its own motion, became a party plaintiff to this suit. The action was terminated by a compromise agreement under which the life tenant and Beck entered into an agreement in which the life tenant leased to Beck said premises from 1 March, 1933, to 28 February, 1939, subject to termination by the prior death of the life tenant. Claim for damages was released, and Beck agreed to pay $400.00 per annum rental and taxes and street assessments for a period of six years.

On 6 March, 1930, plaintiff conveyed to Mrs. Janie Hall Perry a lot on Chestnut Street, being a part of the devise, subject to a ninety-nine year lease executed by plaintiff on the same day. On 14 January, 1943, it conveyed a part of said property to J. M. Peace, and has contracted to sell the remainder of said property.

During the existence of the life estate plaintiff made no effort to keep the buildings on said property in good repair and took no action against the life tenant for waste.

*430"When tbe cause came on to be beard in tbe court below tbe parties entered into a written stipulation waiving trial by jury, agreeing upon tbe facts substantially as above stated, and requesting tbe court to render a declaratory judgment upon tbe pleadings in tbis cause and tbe facts agreed upon by tbe parties.

Thereupon, tbe court made certain additional findings of fact and adjudged:

“(1) That tbe ‘Item Fifth’ of tbe will of tbe late John R. Moss vested in tbe Oxford Orphanage a fee simple title to tbe property therein devised to it, subject to tbe life estates of Arthur Vivian and Mrs. Lelia Moss, both of whom are now dead.

“(2) That there is no restriction against alienation in said will and that the Oxford Orphanage has tbe right to and can convey a good fee simple title to the property devised it under ‘Item Fifth’ of said will.

“(3) That tbe conveyances heretofore made or agreed to be made by said Orphanage are in all respects authorized, ratified and confirmed, both upon tbe construction of tbe will and in tbe exercise of its equity jurisdiction. Tbe proceeds of any such sales to go to tbe Oxford Orphanage for its use and benefit.”

Tbe defendants, heirs at law of John R. Moss, duly excepted to tbe judgment entered and appealed.

*Perry & Eittrell for plaintif, appellee.*

*O. B. Moss and I. B. Watkins for defendants, appellants.*

Barnhill, J.

While tbe defendants, heirs at law of John R. Moss, tbe testator, in their answer claim title to tbe *locus in quo,*they do not allege that tbe plaintiff refused to accept or, having accepted, later rejected the devise, so as to invoke tbe terms of tbe reverter clause. Instead, in support of their claim, they allege that tbe deterioration and destruction of tbe buildings was due to tbe negligence of tbe life tenant and constitutes acts of waste; that tbe removal of structures therefrom was wrongful and unlawful; that it was tbe duty of tbe remainderman to prevent tbe loss and destruction of said property; and that by its negligence in failing so to do it violated tbe terms of tbe will and forfeited all interest in tbe property. They pray that tbe Court decree that both tbe life tenant (who has died since tbe institution of tbis action) and tbe re-mainderman have forfeited all right, title, and interest in said property and tbe title thereto is now vested in them.

Hence tbe answer, considered in tbe light of allegations of waste and negligence and tbe prayer for a decree of forfeiture, would seem to indicate that tbe defendants initially relied upon tbe law of forfeiture for waste.

*431We concur in tbe view of tbe court below tbat appellants acquired under tbe will no sucb interest in tbe land as would entitle them to maintain tbe claim of forfeiture as tbus alleged. *Browne v. Blick,*7 N. C., 511; *Gordon v. Lowther,*75 N. C., 194; *Latham v. Lumber Co.,*139 N. C., 9, 51 S. E., 780; *Hybart v. Jones,*130 N. C., 227, 41 S. E., 293; *Richardson v. Richardson,*152 N. C., 705, 68 S. E., 217; *Batten v. Corporation Commission,*199 N. C., 460, 154 S. E., 748.

Eut they now contend tbat tbe gift to plaintiff created an estate on condition expressed in tbe devise; tbat plaintiff bas rejected or abandoned tbe gift; and tbat, under tbe reverter clause contained in tbe will, tbe title to tbe property now vests in tbe beirs at law.

For a proper determination of tbe question tbus presented it is convenient, and perhaps essential, tbat we separate tbe gift into its two essential parts. (1) Tbe devise is to plaintiff “to bold and use and apply tbe same in so far as it will go after paying for keeping it in repair, for tbe maintenance of said institution.” Tbis is tbe sum total of tbe gift itself. But there is a condition subsequent with a provision for reverter attached. (2) Tbe title to tbe property is to revert to tbe beirs at law of tbe testator if tbe devisee should “refuse tbis gift and devise or later reject it because it might prove unprofitable or for any other cause.”

Hence tbe provision for reverter is limited to a refusal to accept or a rejection after acceptance. Has, tbe conduct of plaintiff been sucb as to call tbis provision into play?

Tbat tbe plaintiff accepted tbe gift cannot be gainsaid. It is now admitted. But tbe defendants say tbat tbe plaintiff, by its failure to maintain tbe property or to take any action against tbe life tenant for waste, and by its conveyances and attempts to convey bas abandoned tbe property and tbat sucb abandonment is in law a rejection. Tbis position is equally untenable.

Tbe plaintiff bad tbe right to proceed against tbe life tenant for waste committed or permitted by her. Tbe exercise of tbis right, however, was optional. It was not compelled to proceed or risk tbe loss of its interest in tbe property. Tbat it refrained from harassing tbe widow of its benefactor with demands and suits for damages cannot be held for cause for forfeiture. Nor is it any evidence of abandonment or rejection of tbe gift in remainder.

But plaintiff’s action was not altogether negative. From time to time it came to tbe aid of tbe life tenant and paid taxes on tbe property. It voluntarily joined in an action against a lessee for damages for breach of contract to keep in repair. It leased and conveyed parcels of tbe property. These were positive acts of ownership effectively refuting any intent to abandon or reject.

*432Tbe former conveyances and the present offer to convey by plaintiff does not constitute an abandonment. “The word ‘abandonment’ has a well defined meaning in the law which does not embrace a sale or conveyance of the property. It is the giving up of a thing absolutely, without reference to any particular person or purpose, and includes both the intention to relinquish all claim to and dominion over the property and the external act by which this intention is executed, and that is, the actual relinquishment of it, so that.it may be appropriated by the next comer.” *Church v. Bragaw,*144 N. C., 126, 56 S. E., 688. “There can be no such thing as abandonment in favor of a particular individual or for a consideration, as such an act would be a gift or a sale.” *Richardson v. McNulty,*24 Cal., 339; *Church v. Bragaw, supra.*“The well understood meaning in the law of the term ‘abandonment’ does not embrace a sale, gift, or other transfer of property.” 1 C. J. S., 6. When there is a sale or gift, or a transfer in any other mode provided by law, the continuity of the possession is preserved and any intent to abandon is refuted. 1 C. J. S., 6; *Church v. Bragaw, supra;*Black’s Law Diet., p. 4; 1 Words and Phrases, Permanent edition, pp. 4, 5, and 57.

The appellants further insist, however, that the gift was in trust for the use of the orphanage; that the plaintiff is, by express language, charged with the duty of “keeping it in repair”; that this creates a condition subsequent; and that the failure to keep in repair constitutes a breach of this condition, working a forfeiture.

The gift is of a fee simple estate in remainder, limited only by the provision for reverter upon a failure to accept or a rejection after acceptance. *Church v. Refining Co.,*200 N. C., 469, 157 S. E., 438; *Hall v. Quinn,*190 N. C., 326, 130 S. E., 18; *Lassiter v. Jones,*215 N. C., 298, 1 S. E. (2d), 845; *Church v. Bragaw, supra; St. James v. Bagley,*138 N. C., 384, 50 S. E., 841; *Coole v. Leggett,*88 Ind., 211.

A clause in a conveyance will not be construed as a condition subsequent unless it expresses, in apt and appropriate language, the intention of the parties to this effect *(Braddy v. Elliott,*146 N. C., 578, 60 S. E., 507), and a mere statement of the purpose for which the property is to be used is not sufficient to create such condition. *Hall v. Quinn, supra; Church v. Refining Co., supra; Shields v. Harris,*190 N. C., 520, 130 S. E., 189; *Shannonhouse v. Wolfe,*191 N. C., 769, 133 S. E., 93; *University v. High Point,*203 N. C., 558, 166 S. E., 511; *Tucker v. Smith,*199 N. C., 502, 154 S. E., 826; *Lassiter v. J ones, supra; Cook v. Sink,*190 N. C., 620, 130 S. E., 714.

“A grantor can impose conditions and can make the title conveyed dependent upon their performance. But if he does not make any condition, but simply expresses the motive which induces him to execute the *433deed, tbe legal effect of tbe granting words cannot be controlled by tbe language indicating tbe grantor’s motive.” 2 Devlin on Deeds, sec. 838; *St. James v. Bagley, supra; Mauzy v. Mauzy,*79 Va., 537.

Tbe court below approved tbe sale in tbe exercise of its equity jurisdiction. *Johnson v. Wagner,*219 N. C., 235, 13 S. E. (2d), 419. As tbe devise did not create a charitable trust and a fee simple title was conveyed, tbe plaintiff is free to sell in its discretion. Hence we need not discuss tbis phase of tbe judgment entered.

Tbe judgment below is

Affirmed.

'WiNBORNE, J., took no part in tbe consideration or decision of tbis case.