{ "id": 11271994, "name": "NADA R. McDONALD et al,, v. ALFRED G. HOWE et al.", "name_abbreviation": "McDonald v. Howe", "decision_date": "1919-10-15", "docket_number": "", "first_page": "257", "last_page": "259", "citations": [ { "type": "official", "cite": "178 N.C. 257" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "171 N. C., 216", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269755 ], "opinion_index": 0, "case_paths": [ "/nc/171/0216-01" ] }, { "cite": "173 N. C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269960 ], "opinion_index": 0, "case_paths": [ "/nc/173/0311-01" ] }, { "cite": "171 N. C., 687", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "140 N. C., 374", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "119 N. C., 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654783 ], "opinion_index": 0, "case_paths": [ "/nc/119/0274-01" ] }, { "cite": "119 N. C., 212", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "113 N. C., 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652103 ], "opinion_index": 0, "case_paths": [ "/nc/113/0020-01" ] }, { "cite": "102 N. C., 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649120 ], "opinion_index": 0, "case_paths": [ "/nc/102/0068-01" ] }, { "cite": "89 N. C., 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683167 ], "opinion_index": 0, "case_paths": [ "/nc/89/0273-01" ] }, { "cite": "85 N. C., 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277513 ], "opinion_index": 0, "case_paths": [ "/nc/85/0258-01" ] }, { "cite": "78 N. C., 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692795 ], "opinion_index": 0, "case_paths": [ "/nc/78/0342-01" ] }, { "cite": "118 N. C., 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653201 ], "opinion_index": 0, "case_paths": [ "/nc/118/0328-01" ] } ], "analysis": { "cardinality": 365, "char_count": 6527, "ocr_confidence": 0.486, "pagerank": { "raw": 2.2737228058969543e-07, "percentile": 0.7840505373093181 }, "sha256": "2ed7d79c48c3382c7e64e1411a7d1483069c1d326d6687771a7d8c7299dab140", "simhash": "1:8560ea27c076248d", "word_count": 1134 }, "last_updated": "2023-07-14T18:32:08.818827+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NADA R. McDONALD et al,, v. ALFRED G. HOWE et al." ], "opinions": [ { "text": "Clark, C. J.\nThere was no irregularity upon the face of the proceedings. This Court has repeatedly held that the requirement that a judgment should be signed by the judge is \u201conly directory and a judgment passed in open court and filed with the papers as a part of the judgment roll is a valid judgment, though not signed by the judge.\u201d Range Co. v. Carver, 118 N. C., 328, citing Rollins v. Henry, 78 N. C., 342; Matthews v. Joyce, 85 N. C., 258; Keener v. Goodson, 89 N. C., 273; Spencer v. Gredle, 102 N. C., 68; Bond v. Wool, 113 N. C., 20.\nEven if the judgment should have been signed, the record could be completed by entering judgment nunc pro tunc at a succeeding term of the court. Ferrell v. Hales, 119 N. C., 212, and cases there cited, which has been approved in Taylor v. Ervin, 119 N. C., 274; Knowles v. Savage, 140 N. C., 374; Browh v. Harding, 171 N. C., 687; Hardware Co. v. Holt, 173 N. C. 311; and especially in Pfeifer v. Drug Co., 171 N. C., 216, where the authorities are fully cited.\nIn the construction of a will the object is to arrive at the intention of the testator. The testator here gave her daughter the property until her daughters, the plaintiffs, should become of age, \u201cwhen it becomes theirs.\u201d These words indicate an intention that the property should be theirs absolutely upon the happening of that contingency. The words \u201cShould Nada and Alfreda die, leaving 'sister or sisters, brother or brothers, of their mother\u2019s children, the sister or sisters, brother or brothers shall inherit the property herein mentioned\u201d indicate, we think, an intention that should the contingency fail upon which the plaintiffs should have the property absolutely, i. e., should they die before arriving at age, then this property should go to their sisters or brothers. The further clause, \u201cshould they (evidently meaning such sisters or brothers) die, the property to be sold and the proceeds divided between the children of my brothers, John T. Howe and A. P. Howe,\u201d presents more difficulty, but we need not consider that since the property having become absolutely the property of Nada and Alfreda by their arriving at age, the contingency upon which the property should go over to the children of John T. and A. P. Howe cannot happen.\nIt is the policy of the law that a devise should take effect at the earliest moment that the language will permit, which in this case is the arrival at age, at which time the property should become vested in fee. The Act of 1827, now Eev., 1581, construing limitations contingent upon any person dying without heirs, has no application to this case.\nThe plaintiffs, we think,' acquired a fee simple absolute upon their arriving at twenty-one.\nEeversed.", "type": "majority", "author": "Clark, C. J." } ], "attorneys": [ "A. S. Williams for plaintiffs.", "No counsel contra." ], "corrections": "", "head_matter": "NADA R. McDONALD et al,, v. ALFRED G. HOWE et al.\n(Filed 15 October, 1919.)\n1. Judgments \u2014 Unsigned\u2014Statutes Directory.\nAn unsigned judgment passed in open court and filed with the papers in the case as a part of the judgment roll is valid, the requirement that it should be signed by the judge being only directory.\n2. Judgments \u2014 Subsequent Term \u2014 Nunc Pro Tunc.\nJudgment may be entered at a succeeding term of the court, mmc pro tunc, in proper instances.\n3. Wills \u2014 Interpretation\u2014Intent\u2014Estates\u2014Contingent Limitations \u2014 Title.\nA will should be interpreted to effectuate the intention of the parties, and a devise of land to the two daughters until they should become of age \u201cwhen it becomes theirs,\u201d vests the absolute fee-simple title in them upon their becoming of age; and a further provision, should they die, \u201cleaving sister or sisters or brother or brothers of their mother\u2019s children, the sister or sisters or brother or brothers shall inherit the property,\u201d is construed to indicate the intention of the testator that the brothers or sisters would take upon the happening of the contingency of the death of the daughters before reaching the age specified.\n4. Wills \u2014 Estates \u2014 Contingent Limitations \u2014 Interpretation \u2014 Vesting of Title.\nA devise will take effect at the earliest moment that its language will permit, which in this ease is the arrival at the age of twenty-one of the testator\u2019s daughter. Rev., sec. 1581, as to limitations contingent upon any person dying without heirs, has no application.\nAppeal by plaintiff from Calvert, J., at April Term, 1919, of New HaNOVER.\nMary Washington Howe, the aunt of the plaintiffs, provided in her will as follows: \u201cThe remainder of my property I give to my sister, Eebecca Jane McDonald, for ber use until her daughters, Nada Eoberta and Alfreda Eloise, become of age, when it becomes theirs. Should Nada and Alfreda die, leaving sister or sisters, brother or brothers, of their mother\u2019s children, the sister or sisters, brother or brothers, shall inherit the property here mentioned. Should they die, the property is to be sold and proceeds divided between the children of my brothers, John T. Howe and A. P. Howe.\u201d\nThis proceeding is to have the adverse claims of the defendants set aside and to have the plaintiff declared the owner in fee of the land described in the will.\nThe plaintiffs, Nada Eoberta and Alfreda Eloise McDonald, are both of age. The defendants are their minor sisters who through their guardian ad litem demurred to the complaint upon the ground that it does not state a cause of action because it appears from the will under which the plaintiffs claim the land that they \u201cwere only given a life estate in said property and not the fee, and at most they only own a determinable fee, and that in the event they should die leaving a brother or sister of their mother\u2019s children that the fee simple estate would be given to such brother or sister; and this being true, the plaintiffs are not entitled to have the court adjudge that these defendants have no interest in said property and that the plaintiffs own the same in fee simple.\u201d The other defendants are the sons of John T. and A. P. Howe.\nThe case coming before Stacy, Judge, at Fall Term, 1918, he sustained the demurrer and held that the plaintiffs were not the owners in fee of the land described in the complaint, but the court adjourned before the judgment sustaining the demurrer was signed.\nThe case was brought before Calvert, Judge, at April Term, 1919, of the same court, who ruled that \u201cplaintiffs are not the owners in fee of the land, but only have a life estate therein, or at most a determinable fee, and therefore are not entitled to the relief prayed for\u201d and dismissed the action. Appeal by plaintiffs.\nA. S. Williams for plaintiffs.\nNo counsel contra." }, "file_name": "0257-01", "first_page_order": 323, "last_page_order": 325 }