Am. Yarn & Processing Co v. Dewstoeetal

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS
• Citation: Am. Yarn & Processing Co v. Dewstoeetal, 192 N.C. 121, 133 S.E. 407 (N.C. 1926)
• Decision Date: 09 June 1926
• Docket Number: (No. 471.)
• Parties: AMERICAN YARN & PROCESSING CO. v. DEWSTOEetal.

133 S.E. 407

AMERICAN YARN & PROCESSING CO.

v.DEWSTOEetal.

(No. 471.)

Supreme Court of North Carolina.

June 9, 1926.

(192 N.C.)

Appeal from Superior Court, G. V. Gaston County; Cowper, Special Judge.

Suit by the American Yarn & Processing Company against Eugene H. Dewstoe and others. From the judgment, plaintiff and certain defendants appeal. No error.

Martin R. Dewstoe died in February, 1912, seized of 83 acres of land in River Bend township, Gaston county. He left surviving him his widow, Martha L. Dewstoe, who died December 8, 1922, and four children, namely, Louise D. Henderson, Gertrude Costner, Martin E. Dewstoe, and Eugene H. Dewstoe. Mrs. Louise D. Henderson is the mother of Mrs. Jean Henderson Thistlethwaite and Miss Bain Henderson; Mrs. Gertrude Costner has never had a child born to her; Eugene H. Dewstoe is the father of Catherine Dewstoe, an infant under the age of 14 years; and Martin E. Dewstoe died in Alabama May 10, 1925, without issue, leaving as his widow Rose McDonald Dewstoe, who is his qualified executrix.

Martin R. Dewstoe also left a will, probated July 16, 1912, the material clause of which follows:

"I give and bequeath to my beloved wife, Martha L. Dewstoe, all my real estate situated in Gaston and Moore counties, including my dwelling house, all my outhouses and other improvements, together with all my personal property including my cotton mill stocks, my live stock of whatever kind I may possess at my death, to have and to hold to her, the said Martha L Dewstoe for and during the term of her natural life, and at her death the said real and personal property to be equally divided among my children, viz.: Louise D. Henderson, Gertrude Costner, Martin E. Dewstoe, and Eugene H. Dewstoe, and if any of my heirs dies without issue their proportional part of my estate shall revert to my lineal descendants."

On August 13, 1918, Martha D. Dewstoe, widow of the testator, and Louise D. Henderson, widow, Martin E. Dewstoe and his wife, Gertrude D. Costner and her husband, and Eugene H. Dewstoe and his wife conveyed by deed with the usual covenants and warranties 15¹/₂ acres (which is a part of the 83 acres) to the American Processing Company, predecessor of the plaintiff, and on November 7, 1923, a similar deed was executed to the plaintiff for 1²/₃ acres (a part of the 83-acre tract) by the same grantors, except Martha L Dewstoe, who had died.

Martin E. Dewstoe devised his property to his wife, and in the third item he provided that whatever he acquired under his father's will should descend through him to his wife.

After receiving the two deeds referred to above the plaintiff was informed that the children of Mrs. Louise D. Henderson and the child of Eugene H. Dewstoe claim that they have a contingent interest in the land thus conveyed to the plaintiff, and that such interest can be determined only as the several heirs may die; and therefore it brought suit praying that it be declared the owner of an indefeasible title to the two lots conveyed to it, and that the defendants and the unborn lineal descendants of Martin E. Dewstoe bo forever excluded, or, in lieu thereof, that the share of Martin E. Dewstoe in the land devised by his father be allotted in fee to Louise D. Henderson, Gertrude D. Costner, and Eugene H. Dewstoe so as to include the land conveyed to the plaintiff, and that it be decreed that their title inure to the benefit of the plaintiff by virtue of the deeds executed by the defendants. A guardian was appointed to represent the infant defendant and the unborn lineal descendants. The following verdict was returned:

"(1) Are the devisees of Martin R. Dewstoe, deceased, still the owners of the entire tract of land described in paragraph 4 of the complaint, subject to the terms and provisions of the will of Martin R. Dewstoe, except the parcels thereof heretofore conveyed to the plaintiff by the deeds of conveyance referred to in paragraph 7 of the complaint? A. Yes.

"(2) Are the two parcels of land conveyed to the plaintiff by the deeds of conveyance refer-red to in paragraph 7 of the complaint (being parts of the tract described in paragraph 4 of the complaint) at this time and at all times since the death of Martin R. Dewstoe less in value and acreage than one-fourth of the acreage and value of the tract of land described in paragraph 4 of the complaint, which was devised by the will of Martin R. Dewstoe, deceased, as alleged in the complaint? A. Yes.

"(3) Can one-fourth in value of the tract of land described in paragraph 4 of the complaint be set aside and allotted in severalty to the defendants, Mrs. Louise D. Henderson, Mrs. Gertrude D. Costner, and Eugene H. Dewstoe. so as to embrace and include the parcels of said entire tract of land heretofore conveyed to the plaintiff by the deeds of conveyance referred to in paragraph 7 of the complaint, without prejudice to the interest of the other parties who now have, or may hereafter acquire, an interest in said tract of land under the will of Martin R. Dewstoe, deceased? A. Yes."

Judgment for the plaintiff, and appeal as noted.

W. S. O'B. Robinson, Jr., of Charlotte, for plaintiff.

R. B. Evins, of Birmingham, Ala., and Cansler & Cansler, of Charlotte, for Rose McDonald Dewstoe.

O. F. Mason, Geo. B. Mason, and O. F. Mason, Jr., all of Gastonia, for Eugene H. Dewstoe and others.

ADAMS, J. [1-3] It was adjudged by the trial court that the interest or estate of each of the four children in the devised land was subject to be defeated and terminated as to each of them by his or her death without issue then living or born within ten lunar months thereafter. This adjudication is assailed by the plaintiff and Rose McDonald Dewstoe, widow and executrix of Martin E. Dewstoe, who contend that the death of the life tenant was fixed as the time when the* devise over was to become effective, and that the devise to the lineal descendants is not a limitation upon the estates taken by them on the division, but is a statement of the conditions upon which the lineal descendants of the testator were to be substituted for any child who might be dead without issue at the time the division was made.

As a general rule, where a devise is made to one for life and after his death to the testator's next of kin, the next of kin who are to take are the persons who answer that description at the death of the testator and not those who answer the description at the death of the first taker. Jenkins v. Lambeth, 172 N. C. 466, 90 S. E. 613; Goode v. Hearne, 180 N. C. 475,, 105 S. E. 5;...