Clark v. Cox

• Decision Date: 16 October 1894
• Citation: 20 S.E. 176,115 N.C. 93
• Parties: CLARK et al. v. COX et al.
• Court: North Carolina Supreme Court

20 S.E. 176

115 N.C. 93

CLARK et al. v. COX et al.

Supreme Court of North Carolina

October 16, 1894

Appeal from superior court, Halifax county; Bynum, Judge.

Action by Henry N. Clark and others against W. R. Cox and others for partition. From the judgment, plaintiffs appeal. Affirmed.

A grantor deeded land in trust for N. for life, then for such of her children as might be living at her death, and, in case of her death without surviving children, then in trust for L., A., O., and R., and their heirs, etc., and if one or more of them should die before such contingency should take place without a surviving child or children then to the survivors of them, "their heirs and assigns." N. survived L A., O., and R., and died without issue. A. and R. died without leaving any child or descendant. Held, that the children and grandchildren of L. and O. took per stirpes, and not per capita.

On the 13th day of January, 1807, James Smith executed a deed in trust to David Clark, containing the following provision "To have and to hold the said tract or parcel of land and, all and singular, the premises above mentioned, to the said David Clark and his heirs, for the uses and purposes hereinafter mentioned; that is to say, in trust for the use and behoof of the said Lucy S. Norfleet during her life, then for the use and behoof of such child or children as she, the said Lucy S. Norfleet, may have living at the time of her death, and, in case the said Lucy S. Norfleet should die without leaving any child or children living at the time of her death, then in trust for the use, benefit, and behoof of Louise Clark, Ann S. Norfleet, Olivia Norfleet, and Rebecca Norfleet, their heirs and assigns, and if one or more of them, the said Louise Clark, Ann S. Norfleet, Olivia Norfleet, and Rebecca Norfleet should die before such contingency shall take place, without leaving any child or children then living at the time of her or their death, then to the use and benefit of the survivor or survivors of them, the said Louise Clark, Ann S. Norfleet, Olivia Norfleet, and Rebecca Norfleet, their heirs and assigns, forever." Lucy S. Norfleet intermarried with Weldon N. Edwards, and died May 2, 1892, without having had any issue. Ann S. Norfleet and Rebecca Norfleet died during the lifetime of Lucy S. Edwards, nee Norfleet, without leaving any child or descendant. Louise Clark died during the lifetime of Lucy S. Edwards, and her grandchildren and great-grandchildren are the plaintiffs. Olivia Norfleet intermarried with Thomas Cox, and died during the lifetime of Lucy S. Edwards, and her children and grandchildren are the defendants. A petition was filed by the plaintiffs against the defendants for a sale of the land conveyed upon trust by James Smith, for partition, and the land sold. Judgment was rendered decreeing the division of the fund among the plaintiffs and defendants per stirpes, and from this judgment the plaintiffs appealed.

R. O. Burton and E. T. Clark, for appellants.

Thos. N. Hill, for appellees.

SHEPHERD C.J.

It is contended on the part of the plaintiffs that Louise Clark and Olivia Cox, nee Norfleet, who died during the lifetime of Lucy S. Edwards, nee Norfleet, took no interest under the deed in trust that could be transmitted by descent; that their heirs, who are the plaintiffs and defendants, took as purchasers, individually, as if they had been named in the said deed; and that the fund should therefore be divided per capita, and not per stirpes. A perusal of the deed very clearly shows that it was not made ope consilii, and the language used by the draughtsman has such a definite and legal significance that but little difficulty is experienced in arriving at the intention of the donor. It may also be observed that in limitations of a trust "the construction of limitations ought to be made according to the construction of limitations of a legal estate, unless the intent of the testator or author of the trust plainly appears to the contrary." Fearne, Rem. 125; Starnes v Hill, 112 N.C. 1, 16 S.E. 1011. As there is nothing in the deed from which we can infer that the terms therein employed were to be understood in any other than their technical sense, we must determine the limitations under consideration according to the rules of the common law applicable to limitations of a strictly legal character. Conceding the authority of Holmes v. Holmes, 86 N.C. 205, commented upon in Fulbright v. Yoder, 113 N.C. 456, 18 S.E. 713, and treating that case as the single exception to the rule above mentioned, we have in this case a limitation to Lucy S. Norfleet for life, and a remainder in fee to such of her children as might be living at her death. As she had no children at the time of the execution of the deed, the remainder to them was contingent; and as, in the event of her dying without children, a remainder was limited to Louise Clark, Ann S. Norfleet, Olivia Norfleet, and Rebecca Norfleet, and their heirs, there was a limitation of two concurrent fees, by way of remainder, as substitutes or alternatives one for the other, the latter to take effect in case the prior one should fail to vest in interest, and this limitation is called "a limitation by way of remainder on a contingency with a double aspect." Watson v. Smith, 110 N.C. 6, 14 S.E. 610. It must be noted that the limitation to Louise Clark and her sisters above named was a limitation to them and their heirs, and not to those who...