Baugham v. Trust Co. of Washington

• Court: North Carolina Supreme Court
• Writing for the Court: ALLEN, J.
• Citation: Baugham v. Trust Co. of Washington, 107 S.E. 431, 181 N.C. 406 (N.C. 1921)
• Decision Date: 25 May 1921
• Docket Number: 18.
• Parties: BAUGHAM v. TRUST CO. OF WASHINGTON.

107 S.E. 431

181 N.C. 406

BAUGHAM v. TRUST CO. OF WASHINGTON.

No. 18.

Supreme Court of North Carolina

May 25, 1921

Appeal from Superior Court, Buncombe County; Allen, Judge.

Controversy without action by Seth B. Baugham against the Trust Company of Washington. From a judgment for plaintiff, defendant appeals. Affirmed.

Where a testator devised lands to his children with direction that if any one or more should die without issue, then to the survivors, and, if all should so die, then to his heirs, the gift to the heirs is to a class, which is to be determined as of the date of the testator's death; consequently the gift over is one to the testator's children as they were his heirs, so partition proceedings between the children whereby the right of survivorship, etc., was barred and released is binding, and the children receive indivisible titles.

This is a controversy submitted without action on an agreed statement of facts, and the single question presented is whether Seth B. Baugham is the owner of the indefeasible fee in the lot of land described in the agreement of the parties.

W. P Baugham, who was the former owner of this and other lands died in 1910, leaving a will the third item of which is as follows:

"3rd. Should I die without leaving any children, or child surviving me, or should my children die without surviving them any lawfully begotten children, or issue, should one or more die without legal issue, the remaining ones to share in that ones or their interest in my estate, share and share alike. Should all of my children die leaving no lawfully begotten issue, then in that case, I give, devise and bequeath all of my said property to my heirs at law, said heirs to be determined by the laws of the state of North Carolina."

At the time of his death the said W. P. Baugham left surviving him Mary A. Baugham, widow, William E. Baugham, Seth B. Baugham, Pattie B. McMullan, Christine C. Baugham, and Mary Baugham (James H. Baugham, one of the children of W. P. Baugham, deceased, having died intestate, without issue on July, 1918), all of whom joined in a petition for partition in which there was the following allegation:

"That your petitioners, Pattie B. McMullan, William E. Baugham, Seth E. Baugham, Christine C. Baugham, and Mary Baugham, desire to own their respective interests in the said lands, described in section 2 hereof (which includes the locus in quo), in severalty, in fee simple, absolutely free from the limitation over to them, respectively, in case of the death of any without leaving surviving children, as set forth in the will of W. P. Baugham, deceased, and your petitioner Mary A. Baugham consents to the said division upon the express condition as follows: [Sets forth conditions as to payment of her annuity not here involved.]

The clerk of the superior court, in ordering the partition of the said lands, adjudged that the same should be divided in accordance with the above stipulation, and the decree of the said clerk has been duly confirmed by the judge."

The lot involved in this controversy was allotted in said proceeding to Seth B. Baugham.

His honor held that Seth B. Baugham was the owner of the lot in fee simple absolute, and the defendant excepted and appealed.

Daniel & Carter, of Washington, N. C., for appellant.

Harry McMullan, of Washington, N. C., for appellee.

ALLEN J.

The land in controversy and other lands are devised in the will of William B. Baugham to all his children, with provision that, if one or more die without issue, the interests of such children so dying shall vest in the survivors, and, if all the children die without issue, then to the heirs of the testator.

The first contingency--"if one or more die without legal issue"--is disposed of by the partition proceeding, to which all the children were parties, and in which the right of survivorship in the event one or more dies without issue is mutually surrendered and released.

It was held in Beacon v. Amos, 161 N.C. 357, 77 S.E. 407, that a similar condition could be eliminated by deed, and, while usually a partition proceeding only operates as a severance of the unity of possession, the parties may put the title in issue, and when they do so the adjudication of title is binding and final between the parties. Weston v. Lumber Co., 162 N.C. 180, 77 S.E. 430, Ann. Cas. 1915A, 931.

It follows, therefore, that the plaintiff, Seth B. Baugham, is the owner in...