Blanchard v. Ward

• Court: North Carolina Supreme Court
• Writing for the Court: DENNY; DEVIN
• Citation: Blanchard v. Ward, 244 N.C. 142, 92 S.E.2d 776 (N.C. 1956)
• Decision Date: 23 May 1956
• Docket Number: No. 454,454
• Parties: A. G. BLANCHARD and wife, Rebecca W. Blanchard, v. R. E. WARD, Sr.

Page 776

92 S.E.2d 776

244 N.C. 142

A. G. BLANCHARD and wife, Rebecca W. Blanchard, v. R. E. WARD, Sr.

No. 454

Supreme Court of North Carolina.

May 23, 1956

Charles W. Daniel, Varina, for plaintiff appellees.

Robert A. Cotten, Fuquay Springs, for defendant appellant.

DENNY, Justice.

The defendant takes the position that the remainder interest of the child, Robert Gibson Blanchard, at the time of his death was contingent. Therefore, he contends that the provisions of G.S. § 41-4 are controlling and the roll call may not be had until the death of A. G. Blanchard, the first taker, who is one of the plaintiffs herein. House v. House, 231 N.C. 218, 56 S.E.2d 695; Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401; Rees v. Williams, 165 N.C. 201, 81 S.E. 286; Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Dawson v. Ennett, 151 N.C. 543, 66 S.E. 566; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435; Galloway v. Carter, 100 N.C. 111, 5 S.E. 4; Buchanan v. Buchanan, 99 N.C. 308, 5 S.E.430.

An examination of the habendum in the deed under consideration is to the effect that the land conveyed to A. J. and A. G. Blanchard is to be held by them during their lives and 'then to go to their children, if they have any, but if there is no issue, then this land shall go to the father' of the grantees and to his heirs.

The land conveyed by the above deed, having been duly partitioned as set forth hereinabove, we are concerned only with the title to that portion allotted to A. G. Blanchard and his children. Roper Lumber Co. v. Herrington, 183 N.C. 85, 110 S.E. 656.

It is settled law in this jurisdiction that when a deed is made to A for life, and at his death to his children, if any, and if there is no issue, then to B and his heirs, if the life tenant has no child or children when it is executed, the remainder is contingent as to such child or children until they are in esse, but the moment a child is born to such life tenant, the remainder vests in such child, subject to open and make room for any child or children who might thereafter be born within the class before the falling in of the life estate. Mason v. White, 53 N.C. 421; Roper Lumber Co. v. Herrington, Supra; Carolina Power Co. v. Haywood, 186 N.C. 313, 119 S.E. 500; Williams v. Sasser, 191 N.C. 453, 132 S.E. 278; Waller v. Brown, 197 N.C. 508, 149 S.E. 687; Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641; Neill v. Bach, 231 N.C. 391, 57 S.E.2d 385; Doe ex dem. Poor v. Considine, 6 Wall. 458, 73 U.S. 458, 18 L.Ed. 869; 33 Am.Jur., Life Estates, Remainders, etc., section 134, page 595 et seq.; 31 C.J.S., Estates, § 73, page 92; 24 A & E Enc. of Law, 2d Ed., page 382 et seq.

It will be noted that the deed to A. J. and A. G. Blanchard gave to them a life estate and the same instrument gave to their children, if any, the remainder. This deed was not made to these grantors and to such of their children as might survive them. The moment Robert Gibson Blanchard came into being he took a vested interest in common with the children of A. J. Blanchard prior to the partition proceeding. Consequently, when he died, where did his vested remainder in the lands allotted to A. G. Blanchard and his children, as a class, go?

The Supreme Court of the United States, in Doe ex dem. Poor v. Considine, supra, in considering this identical question, quoted with approval from 4 Kent's commentaries, page 284, the following: 'A devises to B for life, remainder to his children but if he dies without leaving children remainder over, both the remainders are contingent; but if B afterwards marries and has a child, the remainder becomes vested in that child, subject to open and let in undorn children, and the remainders over are gone forever. The remainder becomes a vested remainder in fee in the child as soon as the child is born, and does not wait for the parent's death, and if the child dies in the lifetime of the parent, the vested estate in remainder descends to his heirs.'

Therefore, when Robert Gibson Blanchard died, before the life estate fell in, leaving no brother or sister and no issue capable of inheriting, he being the sole representative of the class, his interest vested in his father and mother as tenants in common. G.S. § 29-1, Rule 6.

In the case of Severt v. Lyall, 222 N.C. 533, 23 S.E.2d 829, 830, the testator devised certain lands "to my beloved wife, Letha Severt, during her natural life, and at her death to go in fee simple to Clarence Odell Severt, son of W. A. Severt.' ' Clarence Odell Severt, the remainderman, survived the testator but died 23rd August, 1914 intestate and without issue. He predeceased the life tenant. At the time of his death he left surviving as his heirs at law two sisters of the whole blood, the defendants Nellie Severt Lyall and Nelia Severt Church. After his death, there were born to his father and second wife four children, the plaintiffs in the action. The eldest was born in December 1919, over four years after the death of the remainderman, but all were born prior to the death of the life tenant. Barnhill, J., now Chief Justice, said:

'Clarence Odell Severt, upon the death of the testator and by virtue of the devise to him, became seized of a vested remainder. Chas. W. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341. This seems to be conceded. Being a vested remainder it was a fixed interest in land to take effect in possession after the particular estate is spent. Chas. W. Priddy & Co. v. Sanderford, supra. As the owner of the remainder he had a vested interest in the land and was 'seized' of an interest in the inheritance and the remainder owned by him became a new estate acquired by purchase. It passed by inheritance in the line of the new purchaser, 2 Minor Institutes, 442.

'When the owner of the fee conveys it to one for life with the remainder to another the remainderman takes by purchase and becomes a new stirps of inheritance or new stock of descent. On his death the estate passes directly to his heirs at law. King v. Scoggin, 92 N.C. 99; Early v. Early, 134 N.C. 258, 46 S.E. 503; Tyndall v. Tyndall, 186 N.C. 272, 119 S.E. 354; Allen v. Parker, 187 N.C. 376, 121 S.E. 665; Hines v. Reynolds, 181 N.C. 343, 107 S.E. 144. It follows that the feme defendants, the nearest blood kin of Clarence Odell Severt, living at the time he died, acquired title by inheritance at his death. Plaintiffs cannot take as his heirs. They were not 'in life' at the time of the death of the remainderman and were not born within ten lunar months thereafter.'

In Carolina Power Co. v. Haywood, supra [186 N.C. 313, 119 S.E. 501], in 1861 William Boylan devised a plantation and Negro slaves to his son, John H. Boylan, for life, with this further proviso: "If my said son John shall marry and shall have any lawfully begotten child or children, or the issue of such living at his death, then I give, devise and bequeath the said plantation and negroes to such child or children --but if he shall die, leaving no such child or children, nor the issue of such then living, then I give the said plantation and negroes to my grandson William (son of William M. Boylan), during his natural life, and at his death to his eldest son."

John H. Boylan never married, and died leaving no issue surviving him. Upon the death of John H. Boylan, William Boylan (son of william M. Boylan and grandson of the testator), entered into possession of the land in controversy. William Boylan married and there were born to the marriage two children: the first was William James Boylan, who was born 30th July, 1886 and who was the oldest and only son of the said William Boylan; the other child was Miss Josephine Boylan. William James Boylan predeceased his father and died unmarried and without issue on 14th July, 1906, leaving surviving him his sister, Josephine Boylan.

The will of William Boylan contained a residuary clause giving and devising to his children all his real and personal property not disposed of in the will. Since William James Boylan, the eldest son of William Boylan, was not living when William Boylan (grandson of the testator) died, and the life estate fell in, the defendants claimed the plantation in controversy under the residuary clause in the will.

The appellants contended, as in the instant case, that C. S. § 1737, now G.S. § 41-4, controlled and that the only two elements necessary to bring the statute into operation were a contingent limitation and the death upon which the limitation is made to depend. The Court, however, held that 'William...