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178 N.C. 257

100 S.E 427

McDonald v. . Howe

Supreme Court of North Carolina

Decided October 15, 1919

Supreme Court of North Carolina · decided 1919-10-15

Appeal by plaintiff from Calvert, J., at April Term, 1919, of New HaNOVER. Mary Washington Howe, the aunt of the plaintiffs, provided in her will as follows: “The 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.

Relies on J. S. Moore & Co. v. Atlantic Coast Line Railroad

Good law ✅— No negative treatment on recordhow we know

Decided 1919-10-15

How this case has been cited

Cited by 9 later decisions — most recently June 1993

9 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Clark, C. J.

¶1 There 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 “only 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.” 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.

¶2 Even 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.

¶3 In 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, “when it becomes theirs.” These words indicate an intention that the property should be theirs absolutely upon the happening of that contingency. The words “Should Nada and Alfreda die, leaving 'sister or sisters, brother or brothers, of their mother’s children, the sister or sisters, brother or *259 brothers shall inherit the property herein mentioned” 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, “should 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,” 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.

¶4 It 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.

¶5 The plaintiffs, we think,' acquired a fee simple absolute upon their arriving at twenty-one.

¶6 Eeversed.

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