Chas. W. Priddy & Co. v. Sanderford
| Decision Date | 05 June 1942 |
| Docket Number | 745. |
| Parties | CHAS. W. PRIDDY & CO., Inc., v. SANDERFORD et al. |
| Court | North Carolina Supreme Court |
Petition for sale for partition.
Peter Haithcock, a resident of Granville County, died testate seized and possessed of certain land in said county. His will, in part, provides: "I give and devise to my beloved wife, Mittie F. Haithcock, the tract of land on which I now reside during her natural life and at her death I want this land to go to my children or their representatives except that part of the land on the northeast side of the road running from the Tarboro Road to Mt. Energy Road, which I give to my step son Henry Harrison, at the death of my wife."
He left surviving his widow, Mittie Haithcock, who later intermarried with W. G. Sanderford, and five children to-wit: Graham Haithcock and the defendants Tiney Haithcock Sadler, Bulah Haithcock Thaxton, Lella Haithcock Stroud, and Sadie H. Young, all of whom are still living.
Graham Haithcock conveyed his interest in the locus in quo by trust deed. The trust deed was foreclosed and plaintiff became the purchaser and is now the owner of said undivided interest. Thereafter, plaintiff instituted this proceeding before the clerk for sale for partition. The petition alleges the life interest of Mittie F. Sanderford, which has not yet terminated, but it does not clearly appear whether the plaintiff seeks to sell the fee, including the life estate or merely the remainder subject thereto.
The clerk concluded that the children of the testator took only a contingent remainder under the will and that the plaintiff is not seized and possessed of such present interest in said land as would entitle him to a sale for partition. He thereupon dismissed the petition.
On appeal to the Superior Court the judge below found the facts and on the facts found he concluded that the interest of Graham Haithcock is contingent upon his surviving the life tenant; that the ultimate takers in the event he fails to survive are not parties to the action; and that:
Judgment was thereupon entered decreeing that plaintiff has no vested interest in said land; that such interest will become vested only in the event Graham Haithcock survives the life tenant; and that the petition be denied with leave to plaintiff to renew its motion in the event said Graham Haithcock shall survive the life tenant. Plaintiff excepted and appealed.
D. P. McDuffee, of Henderson, for appellant.
No counsel for appellees.
This appeal presents for decision two questions: (1) Is one of several tenants in common of real property which is subject to an outstanding life estate entitled to have a sale thereof for partition prior to the expiration of the life estate; and (2) are the children of the testator seized of a vested or a contingent remainder?
The first question is answered by statute. For the purpose of partition the tenants in common of a vested remainder are deemed to be seized and possessed thereof as if no life estate existed and the existence of the life estate is no bar to a proceedings for sale for partition. C.S. § 3234; Gillespie v. Allison, 115 N.C. 542, 20 S.E. 627. See, also, Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86. However, this shall not interfere with the possession of the life tenant during the existence of her estate. She is not a tenant in common with the plaintiff. While she may waive her rights and consent to the sale of her estate, C.S. § 3235; Sides v. Sides, 178 N.C. 554, 101 S.E. 100, this may not be done, against her will, in a partition proceeding. Ray v. Poole, 187 N.C. 749, 123 S.E. 5.
In the construction of a will the object is to arrive at the intention of the testator and it is the policy of the law that a devise should take effect at the earliest possible moment that the language will permit. McDonald v. Howe, 178 N.C. 257, 100 S.E. 427. The law favors the early vesting of estates--it hastens the time when the ulterior limitation takes on a transmittable quality. Hence, the inclination is to construe legacies, and especially provisions for children, to be vested and transmittable if the will possibly admits of it; and they are most reluctantly held to be contingent. Gill v. Weaver, 21 N.C. 41.
The intent to postpone the vesting of the estate must be clear and manifest and not arise by mere inference or construction. 23 R.C.L., 524.
The remainder is vested, when, throughout its continuance, the remainderman and his heirs have the right to the immediate possession whenever and however the preceding estate is determined; or, in other words, a remainder is vested if, so long as it lasts, the only obstacle to the right of immediate possession by the remainderman is the existence of the preceding estate; or, again, a remainder is vested if it is subject to no condition precedent save the determination of the preceding estate. 23 R.C.L., 504. It is a fixed interest, to take effect in possession after a particular estate is spent. 23 R.C.L., 498; Carolina Power Co. v. Haywood, 186 N.C. 313, 119 S.E. 500.
Remainders will be deemed to vest at the death of the testator, when the will becomes operative, unless some later time for the vesting, as the termination of the particular estate or the time of the payment or distribution, is clearly expressed by the words of the will, or is necessarily implied therefrom; such is presumed to be the testator's intention unless the contrary appears. 23 R.C.L. 525.
Words of futurity, apparently importing a contingency, are often construed as...
To continue reading
Request your trial