Alexander v. Fleming

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Alexander v. Fleming, 190 N.C. 815, 130 S.E. 867 (N.C. 1925)
• Decision Date: 23 December 1925
• Docket Number: 499.
• Parties: ALEXANDER ET AL. v. FLEMING ET AL.

130 S.E. 867

190 N.C. 815

ALEXANDER ET AL. v. FLEMING ET AL.

No. 499.

Supreme Court of North Carolina

December 23, 1925

Appeal from Superior Court, Cabarrus County; Lane, Judge.

Action by T. M. Alexander and others against Laura Fleming and others. Judgment for defendants, and plaintiffs appeal. No error.

Devise held to create a defeasible title.

This is an action for the recovery of land. The plaintiffs allege that they and the defendants Byron Kimmons and Nina Faggart who declined to become parties plaintiff, are the owners of the land described in the complaint, that the defendant Laura Fleming wrongfully withholds possession thereof, and that they are entitled to damages. The material facts are as follows: T. A. Fleming, under whom all the parties claim title, died February 1, 1900, seized of certain real estate. He made a will (R. W. Fleming qualifying as one of the executors) in which he named as his surviving children Mary Jane Alexander, Harriet Jenette Kimmons, Algeria Melissa Gillon, and R. W. Fleming. Mrs. Alexander and Mrs. Kimmons are dead, survived by children and grandchildren; Mrs. Gillon is living; R. W. Fleming died testate on February 4, 1923 leaving surviving him the defendant Laura Fleming, his widow but no issue. Margaret Fleming, the widow of T. A. Fleming died during the lifetime of R. W. Fleming. All the surviving heirs or devisees are parties to the action.

In the last will and testament of T. A. Fleming are the following items:

"1. I give and devise to my loving and faithful wife, Margaret, all my lands and personal property, money and notes without reserve, to be used by her for her easy and comfortable maintenance during her natural life.

(My surviving children are Mary Jane, wife of J. C. Alexander, Harriet Jenette, wife of R. M. Kimmons, Algeria Melissa, wife of C. C. Gillon, and my son, R. W. Fleming.)

2. At the death of my wife, Margaret, I will that lands be equally divided between my children above named subject to the following exception.

3. I will and direct that three discreet men of sound judgment be chosen by my legatees who shall be sworn to act impartially.

4. I will and direct that the commissioners chosen shall first lay off a lot of 15 acres square with my dwelling house in the center. To that lot shall be added enough of land to equalize it in value with the other shares without taking in account the value of the buildings or any improvements that may be made on any part of the land that may be embraced in the 15-acre lot after the date of this will, which lot shall be marked lot No. 1, and lot No. 1, I will and devise to my son, R. W. Fleming.

5. I will that the remainder of my lands be divided into three lots of equal value and to each of my daughters I give and devise one lot. And they shall cast lots to determine which one of the three lots each one shall have."

7. If any one of my children above named die without leaving heirs of their body, then all that they have inherited under this will shall revert to my estate and be equally divided among my surviving children or their bodily heirs if any one of them be dead and left children.

8. I hereby appoint and constitute my beloved wife, Margaret and my son, R. W. Fleming, executrix and executor of this my last will and testament which is written with my hand."

The three "discreet men" made partition of the devised lands and allotted to R. W. Fleming lot No. 1, and their report was confirmed by the clerk. At the time of his death, R. W. Fleming owned personal property and several tracts of land. He executed his last will and testament, in which are the following provisions:

"1. I direct my executrix to pay my just debts that I may owe out of the first moneys coming into her hands belonging to my estate.

2. I give and devise to my beloved wife, Laura May Fleming, all my estate, both real and personal or mixed, wherever located or situated, to have and to hold to her absolutely and in fee simple.

3. I hereby constitute and appoint my beloved wife, Laura May Fleming, executrix of this my last will and testament."

Laura Fleming resided with her husband on lot No. 1, and after his death continued to reside there until she rented it to F. M. Craven. She qualified as executrix of her husband's estate.

Upon the trial, the issues were answered as follows:

"(1) Are the plaintiffs and Byron Kimmons and Nina Faggart the owners in fee, and entitled to the immediate possession of the lands described in the complaint? A. Answer: Yes; subject to the dower of Laura Fleming.

(2) Is the defendant Laura Fleming in the possession of said lands? A. Yes.

(3) Is the defendant Laura Fleming in the unlawful possession of said lands? A. Yes.

(4) What was the clear value of said premises during said possession of said Laura Fleming for the years 1923 and 1924? A. $800.

(5) What is the amount of taxes and drainage assessments accrued on and paid by the defendant Laura Fleming while in the possession of said premises? A. $233."

Only the fourth issue was submitted to the jury; the parties having agreed that the judge should find the facts from the evidence and answer each of the others. Judgment upon the verdict. The cause was remanded to the clerk of the superior court, with directions to issue a writ of dower appointing freeholders to allot to Laura Fleming her dower in Lot No. 1 allotted to her deceased husband. The plaintiffs excepted and appealed upon errors assigned.

M. B. Sherrin and Frank Armfield, both of Concord, for appellants.

Hartsell & Hartsell and J. Lee Crowell, all of Concord, for appellees.

ADAMS J.

T. A. Fleming devised his real property to his wife "to be used during her natural life," and directed that it be partitioned after her death among the four children named in his will, subject to the provision:

"If any one of my children above named die without leaving heirs of their body then all that they have inherited under this will shall revert to my estate and be equally divided among my surviving children or their bodily heirs if any one of them be dead and left children."

After the death of the life tenant, the land was divided among the testator's three surviving children and the children of Harriet Kimmons, who meanwhile had died. The land in controversy was devised to R. W. Fleming, and by virtue of the devise he acquired a title in fee, defeasible in the event of his death without children or heirs of his body. C. S. § 1737; Buchanan v. Buchanan, 99 N.C. 308, 5 S.E. 430; Whitfield v. Garris, 131 N.C. 148, 42 S.E. 568; same case, 134 N.C. 25, 45 S.E. 904; Wilkinson v. Boyd, 136 N.C. 46, 48 S.E. 516; Harrell v. Hagan, 147 N.C. 112, 60 S.E. 909, 125 Am. St. Rep. 539; Elkins v. Seigler, 154 N.C. 374, 70 S.E. 636; Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863; Bizzell v. B. & L. Ass'n, 172 N.C. 158, 90 S.E. 142; Albright v. Albright, 172 N.C. 351, 90 S.E. 303; Smith v. Parks, 176 N.C. 406, 97 S.E. 209; Love v. Love, 179 N.C. 115, 101 S.E. 562; Walker v. Butner, 187 N.C. 535, 122 S.E. 301.

The question first presented relates to the alleged right of dower in this estate. Whether elsewhere the law on the subject may be uncertain or confused is a matter with which at present we are not concerned, for our decisions furnish an answer to any inference or suggestion that the determinable quality of R. W. Fleming's estate excludes the widow's right of dower. The exact point arose in Pollard v. Slaughter, 92 N.C. 72, 53 Am. Rep. 402 and Mr. Justice...