#### GUY KIRKMAN v. THEODORE SMITH.

(Filed 28 May, 1918.)

1. Estates — Contingent Limitations — Heirs—Children—Statutes—Interpretation — Death of First Taker.

The statute of 1827, now Revisal, sec. 1581, providing that every con.-’ tinpnt..ltojí.atiqO'.£hyidfiedi.or{'ítlll,iJnad§ praiéjiéiid updinithe dJ,in'giof.tan3?>i person without héirs or heirs of the body, etc., shall be held and inter*580preted a limitation to take effect when such person shall die, not haying such heir, etc., changed the law as it was interpreted prior to 1829, as to perpetuities, and the Statute is not only a law validating limitations of this character, by referring the “death without heir or issue” to a fixed and definite time, but is also regarded as a rule of interpretation by which the estate of the first taker is to be affected with the contingency until his death, unless it clearly appears upon the face of the deed or will that an earlier period was intended by the testator for the first estate to become absolute.

2. Same — Intent—Vesting of Estates.

On devise of an estate to M. for life, then to G. and K., and if they should die without bodily heirs, then over, the creation and existence of the life estate, without more, does not, of itself, affect the statutory rule of construction as to estates in remainder, and the contingency affecting such estates will continue to affect the same till the death of the first takers in remainder. Revisal, sec. 1581.

3. Same — Defeasible Fee — Deeds and Conveyances.

A devise to M. “to be hers her lifetime” and then tó G. and K., and if they should die without any bodily heirs, “then said land shall go back to the Flow heirs,” after the death of M. and K, it is Held, that G., who is alive, married and having living children, has a fee-simple title to the land, defeasible upon his dying without children, and he cannot convey a perfect title thereto.

Actiojst, beard on demurrer to complaint before Long, J., at Spring Term, 1918, of MecKLENbubg.

On matter relevant to tbe question presented, tbe complaint alleged tbat defendant bad entered into a written contract to purchase of plaintiff a tract of land of 132 acres at tbe price of $4,000, or to buy one-balf at $2,000, if plaintiff could only make a valid title to tbat balf; tbat tbe title offered by plaintiff depends upon tbe clause in tbe will of D. W. Flow, executed in 1893, and facts relevant to tbe question as follows:

“Second. To Margaret G. Kirkman, one tract of land known as tbe Harkey Place, supposed to be about 132 acres, adjoining tbe lands of Mrs. Helena Morrison, J. A. Houston, and joining my borne tract; to be bers ber lifetime, and tben to go to Guy Kirkman and Marvin Kirk-man, and if tbey should die without any bodily heirs, tben said land to go back to tbe Flow heirs. I also give to my daughter, Margaret G. Kirkman, three hundred dollars.”

(d.) Tbat Marvin Kirkman died intestate in tbe year 1903, be tben being a young man only eighteen years of age, unmarried, and left no-issue or lineal descendants.

(e.) Tbat Margaret G. Kirkman died on tbe second day of February, 1918, intestate.

(/.) Tbat Guy Kirkman, this plaintiff, is now thirty-one years of age, and has a wife and two children, 8 and 10 years of age, respectively.

*581Defendant demurred on the ground that, on the facts as stated, plaintiff could not make a valid title.

Judgment sustaining demurrer and plaintiff excepted and appealed.

Thaddeus A. Adams for plaintiff.

Gansler & Gansler for defendant.

HoKE, J.

The question of title between these parties was presented to the Court on appeal in a former case, and it was held that, under the terms of the will and the relevant facts then existent, the estate held and title offered by Guy Kirkman was only a defeasible fee and the contract, therefore, which stipulated for a perfect title, could not be enforced. Kirkman v. Smith, 114 N. C., 603. This opinion having been certified down and judgment entered and the life tenant having in the meantime died, the parties again contracted and plaintiff instituted the present suit, contending that the death of said life tenant had so affected plaintiff’s estate that a good title could now be made, but we are of opinion that on the record the position cannot be sustained.

Prior to the act of 1827, it was very generally recognized that in a devise to one in fee with limitations over, if the first taker die without heir or heirs of his body or issue, in terms importing an indefinite failure of heirs or issue, the limitation over on such contingency was held to be too remote and void under the rule against perpetuities.

The position, though enforced at times with great reluctance by the judges, was considered too strongly entrenched and fortified by precedent to be disturbed by judicial action, but operating, as it did not infrequently, to frustrate the intention of the testator and destroy the interests of meritorious claimants, the General Assembly, in 1827, enacted a statute, Revisal, sec. 1581, that as to all deeds and wills executed on and after 15 January, 1828, “Every contingent limitation in any deed or will made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children or offspring or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person shall die, not having such heir, or issue or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise and expressly and plainly declared in the face of the deed or will creating it.”

In various authoritative cases construing this statute, it has been established that it is not only, a law validating limitations of this character by referring the “death without heir or issue” to a fixed and definite time, but it should also be regarded as a rule of interpretation by which *582tbe estate of tbe first taker is to be affected witb tbe contingency until bis death unless it clearly appears on tbe face of tbe deed or will that an earlier period was intended by tbe testator for the first estate to become absolute. Kirkman v. Smith, 174 N. C., 603; Springs v. Hopkins, 171 N. C., 486; Rees v. Williams, 165 N. C., 201; S. c., 164 N. C., 128; Harrell v. Hagan, 147 N. C., 111; Sain v. Baker, 128 N. C., 256; Buchanan v. Buchanan, 99 N. C., 308.

True, it is fully recognized witb us that in case of ambiguity permitting construction, tbe law will favor tbe early vesting of estates, and that ordinarily tbe first taker is to be regarded as tbe primary object of tbe testator’s bounty and, construing wills in reference to these xirinci-ples, we have also repeatedly held that in certain instances an earlier period should be fixed upon for tbe contingent estate to vest, as in Whitfield v. Douglass, ante, 46; Bank v. Johnston, 168 N. C., 314; Dunn v. Hines, 164 N. C., 113.

But, in these cases, tbe ruling was made by reason of terms and limitations in tbe will having some proper bearing or qualification on tbe estate or interest of the first bolder, and none of them, so far as examined, will sanction or uphold tbe position that in wills or deeds coming under tbe provision of tbe statute, such a result will be affected by a vested and preexisting life estate in another. On tbe contrary, many of tbe cases directly bold that this of itself and without more will not interfere witb tbe full operation of tbe statutory rule; that a dying without issue shall be referred to tbe death of tbe first bolder of tbe estate affected by tbe contingency. Wichard v. Craft, present term; Hobgood v. Hohgood, 169 N. C., 485; Elkins v. Seigler, 154 N. C., 374; Perreit v. Byrd, 152 N. C., 220. And so, in tbe present instance, there is nothing whatever which shows or tends to show that an earlier period was intended other than tbe mere fact that a vested life estate is first given to Margaret Gr. Kirkman.

Tbe case of Hilliard v. Kearney, 45 N. C., 221, cited and much relied on by plaintiff, involved tbe construction of a will bearing date in 1775, and expressly exempted from tbe effect of tbe statute. In so far as wills subject to tbe statute are concerned, it has been restricted in its effects to tbe question actually decided in that case, to wit, that tbe quality of survivorship annexed to a devise to five tenants in common should terminate at tbe death of tbe devisor when expressed in tbe singular number, and there was nothing in tbe clause or elsewhere in tbe will to show that a succession of survivorships was intended or that tbe existence of tbe contingency should extend beyond such death. Buchanan v. Buchanan, supra; Harrell v. Hagan, supra.

While there is much valuable learning in Hilliard v. Kearney, and the case is therefore often cited, there is doubt if it is in any way authorita-*583five as to wills or deeds subject to the statutory rule of interpretation and, as suggested in tbe argument of the defendant, the other decisions of like kind cited by plaintiff are either cases of wills bearing date prior to the statute or in the two or three since that time, they have been disapproved on the express ground that the Court had not been sufficiently advertent to the change wrought by the law as a rule of interpretation. See Baker v. Sain, 128 N. C., 256.

And in the recent ease of Rider v. Oates, 173 N. C., 569, also cited for plaintiff, the decision was made to rest on the ground that the deed of trust in express terms provided that the estate to the grantor’s children should become absolute, “shall vest absolutely at the death of his widow.” And that this was not changed by a subsequent limitation in the deed that in the event of all the children dying without issue, the said property shall descend to the brothers and sisters, and construing these provisions together and so as to give each its proper effect, the true intent and meaning of the deed was that the property should go to these brothers and sisters only if all of his children died without issue before the estate became absolute under the first provision. The ruling was, therefore, brought directly within the statute: “That the deed itself fixed the earlier period for the termination of the contingency.”

There is no error and the judgment sustaining the demurrer is

Affirmed.