Beam v. Gilkey

• Decision Date: 31 October 1945
• Docket Number: 164
• Citation: Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641 (N.C. 1945)
• Parties: BEAM v. GILKEY et al.
• Court: North Carolina Supreme Court

35 S.E.2d 641

225 N.C. 520

BEAM v. GILKEY et al.

No. 164

Supreme Court of North Carolina

October 31, 1945

Motions in the cause to vacate order of sale and judgment of confirmation entered at the September Term, 1922 of McDowell.

It appears that on August 31, 1922, Sallie E. Gilkey brought this action in the Superior Court of McDowell County, seeking authority to sell, by order of court and at private sale, a business lot in the Town of Marion. The summons is entitled 'Sallie Gilkey, Plaintiff, against J. Cecil Gilkey, Lois Gilkey, Eurene Gilkey and J. Cecil Gilkey, Jr., by his guardian ad litem, J. Cecil Gilkey, Defendants. ' The sheriff's return shows service of summons and complaint on all the defendants named therein.

The complaint alleges:

1. That the plaintiff is the owner of a life estate in certain town lots (description not in dispute); that the income therefrom is insufficient to meet paving charges, taxes, and support plaintiff.

2. That plaintiff's children, J. Cecil Gilkey Lois Gilkey and Eurene Gilkey, defendants herein, are all of age and are the remaindermen or owners of said property after the life estate of the plaintiff as described in the will of George W. Seagle.

3. That plaintiff is desirous of selling said property; that J. D Blanton has offered $200 per front foot for said lot, which is a full, fair and ample price for same.

4. That a sale be ordered and plaintiff's life estate be paid to her out of the proceeds, 'and that the remainder be paid into the clerk's office, to be held under the direction of this court, for the benefit of the remaindermen as though it were real estate, to be disposed of according to the terms of the will of G. W. Seagle.'

5 That D. E. Hudgins be appointed commissioner to execute deed to J D. Blanton '* * * that a guardian ad litem be appointed for J. Cecil Gilkey, Jr., who is a minor under two years of age, and grandson of the plaintiff; that J. Cecil Gilkey is his father and a suitable person to be appointed guardian ad litem.'

Wherefore, plaintiff prays that the lot be sold to J. D. Blanton at private sale; that plaintiff's life estate be paid to her, and that the remainder be dealt with 'as per the will of Capt. G. W. Seagle.'

An answer was filed by C. C. Lisenbee, attorney for the defendants, admitting the allegations of the complaint and joining in the prayer for relief. A consent order of sale was entered, apparently without investigation on the part of the court, deed was executed, and judgment of confirmation was rendered all at the September Term, 1922.

Thereafter, on March 14, 1931, J. Cecil Gilkey died; his son, J. Cecil Gilkey, Jr., became of age in 1942, and Sallie E. Gilkey died March 28, 1945.

On April 13, 1945, Eurene Gilkey and Lois Gilkey filed motion herein to vacate the order of sale and the judgment of confirmation on the ground that they were never served with summons and never appeared in said cause by counsel or otherwise.

On May 11, 1945, J. Cecil Gilkey, Jr., filed motion herein to vacate order of sale and judgment of confirmation on the ground that they were not binding on him.

The grantee in the commissioner's deed, J. D. Blanton, came in as respondent and resisted the motions. Hugh Beam, administrator of Sallie E. Gilkey, deceased, was substituted as party plaintiff.

On the hearing of the motions, it was made to appear that title to the property was derived from the will of G. W. Seagle, which was duly probated in McDowell County, June 7, 1919. In the first clause of the will, the property is devised to the testator's daughter, Sallie E. Gilkey, 'for and during the term of her natural life, remainder in fee to the children of the said Sallie E. Gilkey. ' The will also contains an additional and subsequent provision as follows: 'My will is that after the death of my said daughter, Sallie, that the property hereby given to her be equally divided among her children, share and share alike, when they become of lawful age, and after the death of their mother, without selling any of said property; and if my said daughter, Sallie, shall die leaving no child or children, or child of any such children, then in that event the property bequeathed to her shall go to her sister Evelyn E. Halliburton and her children.'

The court found that summons and complaint were duly served on all the defendants herein; that C. C. Lisenbee, a member of the McDowell County Bar, was employed to represent the defendants; that he filed answer and consented to the order of sale; that the respondent, J. D. Blanton, was a bona fide purchaser for value without notice of any defects in the proceeding; that deed was executed, money paid and distributed; that the purchaser went into possession and has erected valuable improvements on the property, and that the title thereto ought not to be disturbed.

The motions were therefore denied, and J. D. Blanton was 'adjudged to be the owner in fee simple of the land described in the complaint and in the deed executed to him by D. E. Hudgins, commissioner in this action, free and clear from any adverse claims on the part of Lois Gilkey, Eurene Gilkey and J. Cecil Gilkey, Jr.' Exception.

From the foregoing determination, the movants appeal, assigning errors.

J. M. Horner and Smathers & Meekins, all of Asheville, and E. A. Hilker and W. A. Dennis, of Charlotte, for movants, appellants.

Proctor & Dameron, of Marion, and S. J. Ervin, Jr., of Morganton, for J. D. Blanton, respondent, appellee.

STACY Chief Justice.

We have here motions in the cause to vacate order of sale and judgment of confirmation entered in a proceeding brought to sell land discharged of contingent interests. In re Dodd, 62 N.C. 67; McIntosh on Procedure, 1071. The life tenant, her children as remaindermen, and a grandchild were made parties to the proceeding.

The complaint contains allegation of a present vested interest in the property, but none of any contingent interest which is sought to be discharged by a sale. However, looking at the will of G. W. Seagle, to which reference is made in the complaint, it appears that the property was devised to the plaintiff, Sallie E. Gilkey, 'for and during the term of her natural life, remainder in fee to the children of the said Sallie E. Gilkey', with later and subsequent provision that in case Sallie E. Gilkey should die 'leaving no child or children or child of any such children', the property is to go to her sister, Evelyn E. Halliburton and her children.

The plaintiff, therefore, acquired a life estate in the property under her father's will. McCallum v. McCallum, 167 N.C. 310, 83 S.E. 250. The remainder in fee vested immediately in her children who were living at the death of the testator, subject to open and make room for any after-born child or children, with ultimate limitation over in case the life tenant should die leaving no child or children or child of any such children. Roper Lumber Co. v. Herrington, 183 N.C. 85, 110 S.E. 656; Powell v. Powell, 168 N.C. 561, 84 S.E. 860; Walker v. Johnston, 70 N.C. 576; Chambers v. Payne, 59 N.C. 276; Mason v. White, 53 N.C. 421; 31 C.J.S., Estates, s 73, p. 92; 33 Am.Jur. 543 and 595. 'The remainder is vested in the children of the life tenant who are in esse, and their interest is subject only to a contingency affecting the quantum of their interest, but not the quality of the estate taken by them. ' Deem v. Miller, 303 Ill. 240, 135 N.E. 396, 397, 25 A.L.R. 766. Nor was the vested character of the remainder affected by the direction that the property be equally divided among the children of the life tenant, 'when they become of lawful age, and after the death of their mother. ' Vanhook v. Vanhook, 21 N.C. 589; Johnson v. Baker, 7 N.C. 318, 9 Am.Dec. 605; 33 Am.Jur. 574. The suggested restraint on alienation is of course of no avail. It is void. Williams v. McPherson, 216 N.C. 565, 5 S.E.2d 830; American Trust Co. v. Nicholson, 162 N.C. 257, 78 S.E. 152; Wool v. Fleetwood, 136 N.C. 460, 48 S.E. 785, 67 L.R.A. 444.

It is to be noted that the children in esse of the life tenant, remaindermen in interest, came in by counsel and joined in the prayer for relief. Hence, for all practical purposes, this made it an ex parte proceeding, with the life tenant and her children, first in remainder, asking for a sale of the property. The court of equity was thereupon empowered to order a sale upon application of the life tenant and her children in esse who represented this entire class of remaindermen including children in posse, and to conclude all of the same class then before the court. Ex parte Yancey, 124 N.C. 151, 32 S.E. 491, 70 Am.St.Rep. 577; Branch v. Griffin, 99 N.C. 173, 5 S.E. 393, 398; Irvin v. Clark, 98 N.C. 437, 4 S.E. 30; Williams v. Hassell, 74 N.C. 434. See Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365; Anderson v. Wilkins, 142 N.C. 153, 55 S.E. 272, 9 L.R.A., N.S., 1145. It was likewise in the discretion of the court to determine whether the sale should be private or public. Thompson v. Rospigliosi, 162 N.C. 145, 77 S.E. 113.

If it be conceded that the order of court did not discharge the contingent interest of Evelyn E. Halliburton and her children in the property, becau...