Featherstone v. Pass , 232 N.C. 349 ( 1950 )

60 S.E.2d 236 (1950) 232 N.C. 349

FEATHERSTONE et al.
v.
PASS.

No. 746.

Supreme Court of North Carolina.

July 7, 1950.

R. B. Dawes, Roxboro, Spears & Hall, and Marshall T. Spears, Jr., all of Durham, for petitioners, appellants.

William D. Merritt, Roxboro, and Royster, & Royster, Oxford, for petitioners, other than appellants.

Fuller, Reade, Umstead & Fuller, Durham, Robert E. Long, Roxboro, and James L. Newsom, Durham, for respondent, appellee.

DENNY, Justice.

The question for decision is simply this: Since Person County renounced the devise in Item 3 of the last will and testament of John C. Pass, who is entitled to the property?

The appellants contend that upon the renunciation of the devise by Person County, the property passed under the residuary clause of the will of the testator, and that Robert B. Featherstone is now the owner thereof as devisee under and by virtue of the terms of the residuary clause in the will of his mother, the late Mrs. Lucy Pass Featherstone.

The appellants are relying upon the provisions contained in G.S. § 31-42, the pertinent parts of which read as follows: "Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will * * *."

It is settled law, in this jurisdiction, by reason of the provisions of the above statute, that where a contrary intent does not appear in a will, ordinarily a lapsed, void or rejected devise will pass under an effective residuary clause. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141, Ann.Cas. 1917E, 72; Reid v. Neal, 182 N.C. 192, 108 S.E. 769; Van Winkle v. Catholic Missionary Union, 192 N.C. 131, 133 S.E. 431; Privott v. Graham, 214 N.C. 199, 198 S.E. 635; 57 Am.Jur., Wills, Section 1447, p. 971.

It is a rule of construction, however, that the intent of the testator as expressed in his will must control, unless contrary to some rule of law or at variance with public policy. Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; First National Bank of Salisbury v. Brawley, 231 N.C. 687, 58 S.E.2d 706; House v. House, 231 N.C. 218, 56 S.E.2d 695; Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150, 48 S.E.2d 41; Wachovia Bank & Trust Co. v. Board of National Missions, 226 N.C. 546, 39 S.E.2d 621; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247. Therefore, under the general rule of construction, applicable both to legacies of personalty and devises of realty, a residuary clause which ordinarily carries any lapsed or ineffectual gifts must yield to a contrary intention on the part of the testator. 57 Am.Jur., Wills, Section 1148, p. 973.

In the instant case the testator did express an intent to have this property go to his heirs at law, and not under the residuary clause, in the event there was a forfeiture by Person County. He expressly provided in the event of such forfeiture "the heirs at law of the said John C. Pass shall have the right to enter and take possession of said property and the title to same shall be vested in them as tenants in common." We think he made a complete disposition of this property and that under the terms of the will there is no interest, contingent or vested, to fall into and pass under the residuary clause. Sutton v. Quinerly, 231 N.C. 669, 58 S.E.2d 709.

The Supreme Court of Pennsylvania in passing on the identical point, which is now before us, in Re White's Estate, 174 Pa. 642, 34 A. 321, 323, said: "The corporate action of the legatees, formally renouncing the legacies, because of their determination not to comply with the conditions implied by acceptance, is equivalent to an adjudicated forfeiture, and warrants the claim of the Free Library." The residuary legatees in the above case made the same contention the appellants are making here; and the Free Library was in the identical status of the heirs at law of John C. Pass in the instant case.

It is said in Page on Wills (3d Lifetime Ed.) Vol. 4, section 1412, p. 156. "If testator makes a specific gift over in the event that the legacy or devise in question is renounced or otherwise fails full effect will be given to such intention", citing Board of Regents v. Wilson, 54 Colo. 510, 131 P. 422; Koenig v. Koenig, 92 Kan. 761, 142 P. 261; In re White's Estate, supra; Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, Ann.Cas. 1912D, 1140; Milligan v. Greenville College, 156 Tenn. 495, 2 S.W.2d 90.

In our opinion the legal effect of the renunciation by Person County was tantamount to a failure to comply with the conditions imposed in the devise and was in itself an act of forfeiture. Person County had been sized with a conditional fee in the premises since 12 July, 1935. Its right of possession, however, had been postponed under the terms of the will until the death of Lucy Pass Featherstone, the life tenant.

The appellees contend that the doctrine of acceleration should be applied in this case in the same manner as it is applied in cases of dissenting widows, citing Young v. Harris, 176 N.C. 631, 97 S.E. 609, 5 A.L.R. 477, and similar cases. Be that as it may, we think it was the intent of the testator that if for any reason Person County should fail to accept the devise and comply with the conditions imposed, the title to the property was to vest in his heirs at law and we so hold.

The judgment of the court below is

Affirmed.