McDonald v. . Howe
McDonald v. . Howe
Opinion of the Court
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.
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.
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.
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.
The plaintiffs, we think,' acquired a fee simple absolute upon their arriving at twenty-one.
Eeversed.
Reference
- Full Case Name
- NADA R. McDONALD Et Al,, v. ALFRED G. HOWE Et Al.
- Cited By
- 13 cases
- Status
- Published