Bell v. Gill Am

• Decision Date: 04 March 1931
• Docket Number: No. 100.,100.
• Citation: 157 S.E. 60
• Court: North Carolina Supreme Court
• Parties: BELL . v. GILL AM et al.

157 S.E. 60

(200 N.C. 411)

BELL .

v.GILL AM et al.

No. 100.

Supreme Court of North Carolina.

March 4, 1931.

determination of particular estate, but, when estate ends, all of class having interest are immediately determined.

Appeal from Superior Court, Bertie County; Sinclair, Judge.

Action by Cecelia Capehart Bell against Moses B. Gillam, executor under the will of Celia H. Etheridge, deceased, and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Celia H. Etheridge, the plaintiff's grandmother, died leaving a will, the second and sixth items of which are as follows:

"2. To the children of my son Holley M. Bell, I give, subject to the reservation hereinafter named, the following part of the Eden House Farm, all that land which is now being cultivated under his direction and which lies to the left hand side of the farm road as you go to the house, from this land is excepted 12 acres lying in front of the house which is now cultivated under the direction of Jno. C. Bell. The children of said Holley M. Bell are to have a one-half interest in and to the woodlands, which are to be divided between them and the children of Jno. C. Bell by three disinterested persons some of whom I may hereinafter name.

"The children of said Holley M. Bell are to hold these lands during their life, subject to a reservation hereinafter named, and on their death same shall go to their children, and from them to their lawful heirs forever and ever and ever.

"The said children of Holley M. Bell shall hold these lands, as shall their children and heirs, subject to the right of Holley M. Bell to use all of the lands cultivatable for his personable use, so long as he shall live and he shall in no sense be liable to them for any rents in any sense, but in event the title to the use shall in any way pass out of the hands of Holley M. Bell, immediately the fee shall vest in his children. Said Holley M. Bell shall have the right to have cut the timber on said lands and may sell the same, holding the funds for his said children, but having the full use of same, and if necessary he is to be permitted to use the principal of same, without a full accounting for same."

"6. In event either Holley M. Bell or Jno. C. Bell should die without children, then in that event the children of the other shall take title to the lands on the same terms hereinbefore set forth."

Holley M. Bell and Jno. C. Bell are brothers; the latter being guardian ad litem of his children and the former guardian ad litem of all persons not in esse who might have any interest or claim to the lands described in the complaint. At the hearing, all parties in interest were present in person or by attorney having duly filed their answers to the complaint, and it was adjudged "that the plaintiff, Cecelia Capehart Bell, is the absolute owner in fee simple and entitled to the exclusive possession of all and singular the land devised to her by the will of her grandmother, Celia H. Etheridge, and therein described as 'the following part of the Eden House Farm: All that land which is now being cultivated under his (Holley M. Bell's) direction and which lies to the left hand side of the farm road as you go to the house; from this land is excepted 12 acres lying in front of the house which is now cultivated under the direction of John C. Bell, ' the lands herein referred to and hereby adjudged and decreed to belong to the plaintiff, Cecelia Capehart Bell, being the same described and referred to in the second section of the complaint in this action, including the woodsland therein mentioned, and being also the same land described in the judgment rendered in favor of the plaintiff at November term, 1929, by his honor, Walter D. Small, judge presiding, in the suit of said Cecelia Bell, by her next friend, W. B. Gurley, against People's Bank & Trust Company and Bank of Coleraine, which is also referred to for description. The plaintiff is again declared and decreed to be the absolute owner in fee simple of all and singular the said lands so described and devised to her as aforesaid, and the will of her grandmother, Celia H. Etheridge, is construed accordingly."

The defendants excepted and appealed.

J. A. Pritchett, of Windsor, for appellants.

MacLean & Rodman, of Washington, N. C., for appellee.

ADAMS, J.

The plaintiff is the only child of Holley M. Bell. She...