#### ROMAINE CLARK WOODARD and DAVID WOODARD v. WILLIAM THOMAS CLARK, JR., NANNIE SUE CLARK, GEORGE THOMAS DAVIS, MARY ELIZABETH CLARK DAVIS, GEORGE THOMAS DAVIS, JR., WILLIAM BLOUNT FLOWERS, NANNIE SUE CLARK FLOWERS, SUZANNE FLOWERS, WILLIAM THOMAS CLARK III, HENRY GROVES CONNOR, ALICE WHITEHEAD CONNOR, CHARLES E. HUSSEY, MARY CLARK HUSSEY, GEORGE HACKNEY III, BESSIE HANCOCK HACKNEY, and the Unborn Issue of WILLIAM THOMAS CLARK, JR., HENRY GROVES CONNOR and MARY CLARK HUSSEY, AND WILEY L. LANE, JR., Guardian Ad Litem for GEORGE THOMAS DAVIS, JR., SUZANNE FLOWERS, WILLIAM THOMAS CLARK III, and the Unborn Issue of WILLIAM THOMAS CLARK, JR., HENRY GROVES CONNOR and MARY CLARK HUSSEY.

(Filed 24 September, 1952.)

1. Wills § 33a: Estates § 15—

In North Carolina tbe common law rule prevails that legal future interests in personal property may not be created by deed but may be created by will, either by vested or contingent limitation over after a life estate or defeasible fee.

2. Common Law—

The common law rule that future interests in personal property may be created by will but not by deed prevails in this State, since it has not been abrogated or repealed by statute or become obsolete, and is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State. G.S. 4-1.

3. Constitutional Law § 10a—

It is the prerogative of the Legislature and not the Court to modify a recognized common law rule.

4. Appeal and Error § 51c—

A decision of the Supreme Court must be considered in the light of the facts of the ease in which it is rendered.

Appeal by plaintiffs from *Frizzelle, J.,*May Term, 1952, Wilson.

Affirmed.

*191Action under tbe Declaratory Judgment Act, here on former appeal. *Woodard v. Clark,*234 N.C. 215, 66 S.E. 2d 888.

Tbe plaintiff seeks to bave tbe Court construe tbe last will and testament of *~W.*T. Clark witb special reference to tbe property devised and bequeathed to ber and to declare and fix tbe exact quality of ber estate therein and ber rights, privileges, and responsibilities in respect thereto. All of tbe material facts appear in tbe former opinion of this Court *sufra.*Repetition here would serve no useful purpose.

Tbe *feme*plaintiff is tbe real party in interest. We will therefore, as a matter of convenience, hereafter refer to ber as tbe plaintiff.

When tbe cause again came on for bearing in tbe court below, Eriz-zelle, J., adjudged and decreed that:

“1. Tbe devise and bequest to Romaine Clark Woodard under tbe will of William T. Clark as set forth and contained in Item 15 of said will and Item 5 of tbe codicil thereto are subject to all of tbe limitations, restrictions, qualifications and conditions therein contained;

“2. Tbe plaintiff Romaine Clark Woodard bolds a defeasible fee in tbe real property devised to ber under said will and a qualified property in tbe personalty bequeathed to ber thereunder, subject to an executory limitation over as to both tbe real and personal property in favor of tbe contingent beneficiaries designated in said will and codicil to take effect upon tbe death of Romaine Clark Woodard without leaving issue surviving; to tbe defeasible fee held by Romaine Clark Woodard in said real property and tbe qualified property held by ber in tbe personalty there is coupled a restricted power of sale for tbe limited purpose of such exchange, conversion, investment and reinvestment of tbe *corpus*of said property as may be required for tbe prudent management and conservation of said property;

“3. Romaine Clark Woodbrd is entitled to tbe possession, use and control of tbe real and personal property devised and bequeathed to ber under said will during her lifetime without the necessity of posting bond, subject to tbe right of tbe contingent beneficiaries under said will to seek tbe intervention of tbe Court upon a proper showing that the principal of the estate is endangered.

“4. Romaine Clark Woodard is entitled to the rents, profits and other income derived from said property for ber own use and benefit during tbe continuance of ber estate, but she is not entitled nor does she bave the authority to consume, give away, sell, exchange or otherwise dispose of any part of the principal of said property either real or personal for her own use or benefit;

“5. The said plaintiff shall forthwith file witb tbe Clerk of this Court, an inventory of the real and personal property received by her under tbe will of William T. Clark;

*192“6. Upon tbe death of Romaine Clark Woodard leaving issue surviving ber title to tbe *corpus*of tbe realty and personalty devised and bequeathed to her under tbe terms of said will will ripen into a fee simple as to tbe realty and into an absolute property in tbe personalty in favor of ber heirs and personal representatives;

“7. Upon tbe death of Romaine Clark Woodard without leaving issue surviving, tbe contingent beneficiaries designated under tbe will of William T. Clark shall be entitled to tbe *corpus*of said property, both real and personal, and tbe estate of Romaine Clark Woodard shall then be liable to them for an accounting therefor;”

Plaintiff excepted and appealed.

*Broolcs, McLendon, Brim ■& Holderness for plaintiff appellants.*

*Garr<& Gibbons, Lucas & Band, Wade A. Gardner, and Wiley L. Lane, Jr., for defendant appellees.*

BaRNHIll, J.

Tbe plaintiff on this appeal does not contend there is any error in tbe judgment entered in respect to tbe real property devised to ber. Tbe question she raises, as stated in ber brief, is this: “Is tbe *feme*plaintiff’s estate in tbe personal properties bequeathed to ber by Item 5 of ber father’s Will absolute, or is it subject to a valid limitation over ?”

We settled that question on tbe former appeal, *Woodard v. Clark,*234 N.C. 215, 66 S.E. 2d 888. We then said:

> “A consideration of tbe language contained in tbe Clark will in tbe light of this rule leads us to tbe conclusion that tbe devise to tbe plaintiff does not vest ber with an absolute, unrestricted title to tbe property she received under tbe will.

> . . They (expressions used in the will) are imperative and disposi-tive in nature, effectively devising tbe property to others in tbe event plaintiff should die without issue surviving, (citing cases)”

Tbe cause was remanded “to tbe end tbe court may spell out plaintiff’s rights and define tbe limitations attached to ber title to tbe property involved.”

Even so, there is perhaps language in tbe opinion which would prompt tbe conclusion we held that tbe provisions of the will, and particularly tbe codicil, are sufficient, if effective, to create limitations upon tbe title of plaintiff to tbe personal property bequeathed to ber but left open for future decision tbe question whether such limitations are valid and vest defendants with a contingent future interest in tbe property. Tbe parties have proceeded upon tbe theory this was tbe intent and effect of tbe decision. For tbe purpose of more complete discussion of tbe question we will now so treat it.

*193In tbe early days of English history, holdings of choses in action and durable personal property were comparatively insignificant. Stocks, bonds, notes, and durable chattels not purely personal in nature, such as now compose the hulk of many estates, did not exist. So it was then considered that the ownership of personal property was absolute and incapable of division into succession interests and there could be no remainder or other future interest in a chattel. “. . . Future interests other than those arising out of the law of bailments were not permitted in the field of personal property.” Gavit Black. Comment. 452; 24 A. & E. Enc. 436; 2 Black. Comment. (Lewis’s Ed.) 856; 2 Kent Comm. 352; Gray Perpetuities (3rd Ed.) 598; Thompson Wills 435, sec. 353; *Baker v. R. R.,*113 N.C. 365, 92 S.E. 170.

But the courts of England in the seventeenth century relaxed the rule by holding that a future interest in personal property could be created by will. Gray Perpetuities (3rd Ed.) 600. Property *quae ipso usu con-sumuntur*was excepted and, originally, there were restrictions and limitations as to how such property was to be held and managed for the protection of the contingent future interest or remainder which are not material here.

“The English authorities . . . hold generally that a disposition of a remainder in a chattel is good only in a will ... or when given by the medium of a trust.” 24 A. & E. Enc. 438.

The common law rule has been abandoned by the American courts.

“Today ... (in the various courts of the United States) the generally accepted rule is that the same future interests that are permissible in the field of real property law are also permissible in the law of personal property, and the Eule against Perpetuities is a limitation on the creation of such interests in both fields.” Gavit Black. Comment. 452; 1 Simes F.I. 369; Thompson Wills 435, sec. 353; Gray Perpetuities (3rd Ed.) 72; 3 Page Wills 421, sec. 1150. For cases see Gray Perpetuities (4th Ed.), sec. 848, n. 1, and 14 N.C.L.R. 197, n. 6.

“The rule is now well established that personal property, as well as real estate, is a proper subject of executory interests and limitations, provided the contingency operating to defeat the estate of the first taker is no more remote than the law allows.” Thompson Wills 443, sec. 357.

“It is the *common*opinion in the United States that a future limitation of a chattel personal as a legal interest can be created by deed as well as by will ... In North Carolina alone is the opposite doctrine held.” Gray Perpetuities (3rd Ed.) 73-75; 19 A.J. 570, sec. 114.

“In America a future limitation by will of a chattel personal passes a legal interest . . . Even in North Carolina, where ... a future limitation of a chattel personal by deed is bad, a future limitation by will of *194sueb chattel is good.” Gray Perpetuities (3rd Ed.) *71-72; 1*Simes F.I. 369; Gray Perpetuities (4th Ed.) 744.

So then, as stated in the textbooks cited, North Carolina still follows the common law rule which permits legal future interests in personal property to he created by will but not by deed.

“The principle of *Jones v. Spaight*(4 N.C. 157) is that since 1784, executory limitations of land and chattels are to be construed alike, upon the presumption that the intention of the testator is that in each case the estate should go over on the same event . . .” *Zollicoffer v. Zollicoffer,*20 N.C. 574.

“At common law the ownership of personal property was absolute and incapable of division into successive interests, but this was modified by the English courts to permit the disposition of such property *by will,*but not by deed, upon the same terms and in the same manner as real property, and this State has followed and adopted the later doctrine.” *Baker v. R. R., supra.*

Recognizing and applying the. common law rule as the law in this jurisdiction, we have consistently held that the bequest of a remainder in personal property subject to a preceding life estate vests in the remainderman an enforceable legal estate in the property so bequeathed. *Dunwoodie's Executors v. Carrington,*4 N.C. 355; *Ingram v. Terry,*9 N.C. 122; *Burnett v. Roberts,*15 N.C. 81; *Smith v. Barham,*17 N.C. 420; *Knight v. Wall,*19 N.C. 125; *Knight v. Leah,*19 N.C. 133; *Creswell v. Emberson,*41 N.C. 151; *Chambers v. Bumpass,*72 N.C. 429; *Hodge v. Hodge,*72 N.C. 616; *Rilch v. Morris,*78 N.C. 377; *Britt v. Smith,*86 N.C. 305; *In re Knowles,*148 N.C. 461; *Williard v. Weavil,*222 N.C. 492, 23 S.E. 2d 890.

The rule has been applied in like manner where there was a gift generally to the first taker of (1) specific personal property, or (2) the entire estate of testator, or (3) the residue of the estate, with a limitation over to others in the event the original donee should die without issue or upon some other contingency. *M'Kay v. Hendon, 7*N.C. 21; *Zollicoffer v. Zollicoffer, supra; Threadgill v. Ingram,*23 N.C. 577; *Skinner v. Lamb,*25 N.C. 155; *Gregory v. Beasley,*36 N.C. 25; *Spruill v. Moore,*40 N.C. 284; *Jones v. Simmons,*42 N.C. 178; *Braswell v. Morehead,*45 N.C. 26; *Hall v. Robinson,*56 N.C. 348; *Williams v. Gotten,*56 N.C. 395; *Baker v. R. R., supra; Ernul v. Ernul,*191 N.C. 347, 132 S.E. 2.

When such future interest is created by will it is valid and vests in the ulterior taker an enforceable title either vested or contingent, depending on the condition or event upon the happening of which the right of possession is made to rest.

There is a sound reason why this Court still adheres to the common law rule. So much of the common law “as is not destructive of, or repugnant *195to, or inconsistent with, the freedom and independence of this state . . . and which has not been . . . abrogated, repealed, or become obsolete . . .” is declared by G-.S. 4-1 to be in full force and effect in this jurisdiction. This statute was first enacted in 1715, re-enacted in 1778, and successively with each complete re-enactment of our statute law. *Speight v. Speight,*208 N.C. 132, 179 S.E. 461.

With full knowledge of the decisions on the subject the General Assembly has not seen fit to alter the rule except as to slaves (1 Bev. Stat., ch. 37, sec. 22, Act of 1823; Eevised Code, 1854, ch. 37, par. 21), and of course both of the Acts respecting slaves are now obsolete. It is the prerogative of the Legislature and not the Court to so modify the rule as to bring it in line with modern decisions in other jurisdictions. Until this is done, we must apply the law as we find it.

For eases holding that a future interest in personal property may not be created *inter vivos*see *Brown v. Pratt,*56 N.C. 202; *Outlaw v. Taylor,*168 N.C. 511, 84 S.E. 811; *Speight v. Speight,*208 N.C. 132, 179 S.E. 461; and *Nixon v. Nixon,*215 N.C. 377, 1 S.E. 2d 828.

But plaintiff cites and relies on *Hood v. McElvain,*215 N.C. 568, 2 S.E. 2d 557. She stressfully contends that the Court in that decision abandoned the common law rule and placed deeds and wills on a parity by holding that there can be no valid future interest in personal property created either by will or deed.

That opinion, considered apart from the record in the case, is clearly susceptible of that interpretation. “But 'the law discussed in any opinion is set within the framework of the facts of that particular case (citing eases) ;’ or as expressed by *Chief Justice Marshall*in *U. S. v. Burr,*2 L. Ed. 684, at p. 690: ‘Every opinion, to be clearly understood, ought to be considered with a view to the case in which it was delivered.’ ” *Poindexter v. Motor Lines,*235 N.C. 286, and cases cited.

When the *Hood case*is so considered, it is made to appear that it does not sustain plaintiff’s position. There the court below concluded that the bequest to the first taker was coupled with an unrestricted right of disposition and that therefore the limitation over to the ulterior beneficiaries was void. While the record does not seem to sustain this conclusion, the appellant did not assail the judgment on that ground or cite any authority in respect thereto. And when the gift is to the immediate legatee with unrestricted power of disposition, it vests the absolute estate, leaving-nothing in the testator “capable of being given over to a third person.” *Hall v. Robinson, supra,*Anno. 17 A.L.R. 2d 30. The attempted limitation over is void for repugnancy. *Hall v. Robinson, supra; Chewning v. Mason,*158 N.C. 578, 74 S.E. 357; *Hambright v. Carroll,*204 N.C. 496, 168 S.E. 817; 3 Page Wills 426, sec. 1153; Thompson Wills 438.

*196On the appeal from the judgment of the Superior Court, this Court was limited to a consideration of exceptions and assignments of error contained in the record and brought forward and discussed in the appellant’s brief. Of necessity, therefore, the judgment entered was affirmed.

The court below sufficiently defined the nature of plaintiff’s title to the personal property bequeathed to her and spelled out “the limitations, restrictions, qualifications and conditions” attached thereto by the language contained in the Clark will and codicil. There is no exception or assignment of error in the record directed to this particular part of the judgment and plaintiff does not. challenge the same in her brief. We are of the opinion that the conclusions of the court below fully comply with the directions contained in our opinion on the original appeal and correctly interpret the terms of the will and codicil in this respect.

The judgment entered in the court below is

Affirmed.