The state chronicle. [volume] (Raleigh, N.C.) 1883-1893, 1886-07-29
THE ST PREME cot ri.
SOME DECISIONS REVIEW BY
4 MEMBER OF THE BAR.
.'IeA' outinue> His Review OF Deci>.
IONS of the Supreme Court aud Taih>
About Estates Tail, &c.

Especial Cor. STATE CHEuNleIE
How easy il is to oyerturn established
laW and ul~ett.e property ghf9
smith yo BrIsson, 30 y g. 2~6
kouldud Mercer, Senior, iu so convey
Cd certain land by deed To Rouland. Jun
ior, and the heirs Of hi, body and If the
said Roulaud should have no he r, diving
At his death the said land to 20 to the
heirs Of J y NJ RoulaId. Junior. having
devised to plaintiff, his wife, died without
ever having had Issue and defendants
being The heirs Of } M-being in posse,
sion, plaintiff sued to recover the land.
claiming under the Will of Rouland. Junior
The cause was tried before McR.te. J who
held for plaintiff under the authority of
McBee cX partc, SO \. {. 332
In McBee'S case \ conveyed land by
deed to B and his heirs for and during his
natural life, and at his death to the heirs
Of his body and III default of heirs of his
body living at his death to G.
1t viii be seen that the two cases were
practically identical, and the Judge below
being bound by the ruling in McBee's case
could do nothing else than rule for plain
tiff
On appeal Ashe. j., Smith, G J., and
Merrimon, j., concurring overrule McBee'S
case on the suppoSition that Reade, J. j.,
committed an error in overlooking the
nearness or remoteness of the limitation
over, depending on the words heirs Of
the body LIVING at his death: (that of 1st
taker) and 50 our court overrulcs also the
Judge below, and holds that Rouland's
wife, the plaintiff, took nothing by his
devise, but the land went to defendants
by Il shifting use
1t was Il little hazardous for our court
TO venture Oh the idea that Pearson and
Battle had overlooked" so transparent
an object as these words We're, if the effect
of them, in the way supposed by our
court, could have altered the result.
But Reade, Pearson and Battle knew
what they We're about. They did not con
slider remoteness or prOpinquity involved
in the case, but simply the construction of
the act OF 1874 touching estates tail; and
50 they held: b took an estate tail, con
verted by the act of 1874 into fee sim
pie, and the limitation over was void.
63 n {. 3};5}2 g.
They were right, and our court was
wrong the latter having wholly miscon-
strued McBee's case, and misunderstood
Folk vs.. Whitley s Iredell 1888
In that case the conveyance was before
the act Of 1927, and limitation over was
after default (of lawful issue OF his
body,) and it is true Ruffin, G. j. says 1t
is clear that Ben amin took an estate tail
and consequently the limitation over was
after an indefinite failure of issue. The
effect then is that the fee into which the
act of 1874 turns the estate tail became
absolute" But it by no means follows
that that learned Jurist meant to say that
had the limitation over been after a def
mite failure that the effect of the act would
not have converted the estate into an
absolute fee, for the force of the act has
no dependence on the nature of the lImi
tatlon over.
IN both McBee's and Smiths case there
is an estate tail in first taker with limlta
ton over for default Of issue LIVING AT
THE DEATH.
This does not alter the nature of the
first estate, but only makes the remainder
contingent. SO that if the tenant in tail
have no issue living at death, (but for the
act of 17SD his estate would cease and the
devise over take effect, but if he had such
his estate became absolute though his issue
thereafter failed. end. Jarm 0359.)
And as the condition of a definite fail
ure of issue did not alter the first estate,
but kept it still an estate tail in possession
with a contingent remainder over, there
could be no executory devise IN case of a
Will, or shifting use in that of a deed, be
cause neither can arise when the limitation
over may operate as a remainder. Will
liams, r. 7. (243.) Fearne 1886.
1t is here the statute 1884 comes in, and
converts the estate tail in the first taker,
not into a qualified fee on which there
may be eXecutory devise or shifting Use as
when conveyance is ''to B and his heirs, but
if he dies without heirs of his body living
at his death over, but the act converts
the first estate, that in tail into fee sim
pie --- and empowers tenant IN tail by
any bona tide conveyance to transfer this
fee to a purchaser, so as to bar any re-
mainder or other eXecutory limitation.
See Act 1874, Rev. Code CHIP 43 IL Bat
ties Rev, CHIP. 40 81, Code 1929
On such fee simple an executory de
wise could not be mounted, nor after such
can there be a shifting use for it is of the
nature of both, that the estates conveyed
by them must be incapable of alteration
or destruction by the first taker. Kent
270, Williams, r. p. PA ).
1t remains therefore as the court said in
McBee's case ITO have and to hold the
land to B and the heirs of his body vests
in an estate tail, and that by our
statute is changed into fee simple; the
limitation over in default of heirs of his
body living at his death is void. 63 \. G.
334
1hlS IS plainly so, because 1t would be
repugnant after fee simple with absolute
power Of disposition to impose each an eX-
ecutory limitation.
As Judge Hall said in the leading case
of Davidson vs.. Davidson after elaborately
distinguishing between the force of the
words Giving at the death when applied
to real, or personal property, It matters
not, whether the property be viewed IN
this as real or personal; if real the act
/ of 1874 converts the estate tail into a fee
simple in the first division; if personal the
! limitation is too remote, and the same con-
I sequence follows" l Hanks 1s1.
And following this case Ruffin c. j. in
| Hollowell VS. kornegay said The dlspo-
sition over if after the death of the first
taker without heir lawfully begotten of his
! body, that is of lemainder after an estate
tail in possession, which the act 1874 makes
void Iredel 262.
The meaning OF this is plain enough. 1t
/ is true there is some confusion IN the G. j. 5
idea that if the period of the limitation
were tied up to the death there might be
an executory devise, for this is inconsist-
ent with the effect of the act to make void
the remainder The reference to Saunders
VS.. HYATT, however, makes it all plain Ir
that case Hall j. said: The word he'll
must mean issue, and by that means the
first estate is an estate tail, and by the ac,
of 1874 this Is converted into fee simple
tho ulterOr limitation is therefore voC
without any reference to remoteness.
Hanks 24S.