Carolina Power Co. v. Haywood

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Carolina Power Co. v. Haywood, 186 N.C. 313, 119 S.E. 500 (N.C. 1923)
• Decision Date: 24 October 1923
• Docket Number: 113.
• Parties: CAROLINA POWER CO. v. HAYWOOD ET AL.

119 S.E. 500

186 N.C. 313

CAROLINA POWER CO. v. HAYWOOD ET AL.

No. 113.

Supreme Court of North Carolina

October 24, 1923

Appeal from Superior Court, Chatham County; Daniels, Judge.

Action by the Carolina Power Company against Martha H. Haywood and others. Judgment for plaintiff, and defendants appeal. Affirmed.

A jury trial was waived, and the facts and the law were submitted to, and passed upon by, the court.

The plaintiff alleges that it is the sole owner of the land in controversy, and the defendants make denial and allege that they should be let into possession as tenants in common with the plaintiff. The purpose of the action is to remove a cloud from the plaintiff's alleged title.

The facts are as follows:

(1) That William Boylan, late of Wake county, died in said county on the 16th day of July, 1861, seized and possessed of a large estate, including the lands described in the complaint.

(2) That the said William Boylan, on the 18th day of June, 1858 made and published his last will and testament, which thereafter, ensuing the death of the said William Boylan, was at the November term, 1861, of the court of pleas and quarter sessions of Wake county, duly admitted to probate and record in said county, and was duly recorded in said county, in book 32, pp. 78 to 85, inclusive; and said will was thereafter certified to and recorded upon the Will Records of the county of Chatham, in Book H, at pages 472-478. That no caveat has ever been filed to said will. That said will shall be treated as if it were set out in this statement in full, but for brevity it will not be copied herein. The parts considered as material and vital to this controversy are the following items, to wit:

"Thirdly--I give, devise and bequeath to my son John H. Boylan, for and during his natural life my Cape Fear plantation in the county of Chatham and all of the negro slaves on the said plantation at the date of this will--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 grand-son William (son of Wm. M. Boylan) during his natural life and at his death to his eldest son."

"Twentieth--All the residue of my property whether real or personal and wherever situate, not herein disposed of I give, devise and bequeath to my children to be equally divided between them."

(3) That John H. Boylan (son of testator) entered into the possession of the lands mentioned in the third paragraph of said will, which are the lands in controversy in this action, soon after the death of the testator, and remained in possession thereof until his death in December, 1870. That the said John H. Boylan never married, and died leaving no issue surviving him.

(4) That upon the death of the said John H. Boylan, William Boylan (son of William M. Boylan, and grandson of testator) entered into the possession of the land in controversy, under and by virtue of said third paragraph of said will hereinbefore set out.

(5) That the said William Boylan intermarried with Miss Placide Englehard, and there were born to said marriage two children. The first was William James Boylan, who was born the 30th day of July, 1886, and who was the oldest and only son of the said William Boylan. The other child was Miss Josephine Boylan, who afterwards intermarried with Ellsworth H. Van Patten. That the said William James Boylan predeceased his father, and died unmarried and without issue on the 14th day of July, 1906, leaving surviving him his said sister, Josephine Boylan (afterwards Josephine Boylan Van Patten).

(6) That after attaining the age of 21, the said Josephine Boylan (afterwards Josephine Boylan Van Patten) executed to her father, William Boylan, a deed conveying her interest in said land.

That said deed was duly delivered, and recorded in the office of the register of deeds for Chatham county, N. C., on November 22, 1912, in book FB, pp. 25, 26. That at the time of the execution and delivery of the said deed, the said William Boylan was in possession of said land, by virtue of the devise to him in the said third paragraph of said will hereinbefore set out, and continued in the possession of said land, as well before the execution of the said deed from the said Josephine Boylan, as after, until his death.

(7) That William Boylan (grandson of testator) retained possession of the land in controversy until his death. He died intestate in Wake county, N. C., on or about the 6th day of February, 1915; and he left surviving him, and as his only heir at law, his daughter, Josephine Boylan Van Patten; and his estate was duly settled in the probate court of Wake county.

(8) That Josephine Boylan intermarried with Ellsworth H. Van Patten, and there was born to that marriage only one child, Ellsworth H. Van Patten, Jr. That said Josephine Boylan Van Patten died on or about the 21st day of October, 1919, leaving her surviving her only son and heir at law, Ellsworth H. Van Patten, Jr., and her husband, Ellsworth H. Van Patten.

(9) That after the death of William Boylan (grandson of testator) in the year 1915, Mrs Josephine Boylan Van Patten, during her lifetime, and her husband and child after her death in 1919, were in the open, notorious, adverse and peaceable possession of the lands described in the complaint, and exercised upon said land the usual acts of dominion and ownership.

(10) That during the early part of the year 1923, by proper and regular deeds of conveyance, all of the interest of Ellsworth H. Van Patten and Ellsworth H. Van Patten, Jr., in the lands described in the complaint, were conveyed to the plaintiff; and the plaintiff now owns all the title in and to said lands, which the said Ellsworth H. Van Patten and Ellsworth H. Van Patten, Jr., owned prior to January 1, 1923.

(11) That the defendants and the aforementioned grantors of the plaintiff are the only persons who, in any event, would now be entitled to take under the residuary clause (the twentieth item) of the will of said William Boylan, above set out; and they would take thereunder if at all, the following shares or interests respectively, that is to say; the grantors of the plaintiff, the said Ellsworth H. Van Patten, Jr., and his father would together take an undivided one-eighth interest in the land in controversy. The defendants Martha H. Haywood, Elsie B. Haywood, Katherine H. Baker, Mary Snow Baskerville, Adelaide Snow Boylston, and William Boylan Snow would each take an undivided one twenty-fourth interest therein; the defendants William M. Boylan, Rufus T. Boylan, Mary Kincey Boylan Thompson, and Katherine B. Caperton would each take an undivided one-fourtieth interest therein; and the remaining defendants who are the descendants of Jennie Boylan Green, the only child of the testator by his second marriage, would collectively take an undivided one-half interest therein; and it is hereby stipulated that the attorney for said defendants may, at any time before the hearing, make specification in writing of the several shares of said one-half interest which said defendants would take respectively.

His honor rendered judgment declaring the plaintiff to be the owner in fee simple of the land described in the complaint and in controversy, and that the defendants are not the owners of said land or any part thereof, and have no interest or claim therein. Whereupon the defendants excepted and appealed.

Carter, Shuford & Hartshorn, of Asheville, for appellants.

Pou, Bailey & Pou and W. L. Currie, all of Raleigh, for appellee.

Long & Bell, of Pittsboro, for grantors of appellee.

ADAMS J.

It seems to be admitted that the controversy depends primarily upon the third and twentieth items of the will, and that these items must be interpreted in the light of the facts. The appellants insist that the interpretation of these clauses should be governed by the rule of construction adopted in 1827 and embodied in section 1737 of the Consolidated Statutes, and that the only two elements necessary to the operation of the statute are a contingent limitation and the death upon which the limitation is made to depend. Excluding the contingency of John H. Boylan's marriage and of his leaving surviving issue, the appellants contend that, since a quarter of a century elapsed between the death of the testator and the birth of the "eldest son" of William Boylan (grandson), the devise created a contingent limitation to a person not in...