Cooley v. Lee

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J.
• Citation: Cooley v. Lee, 170 N.C. 18, 86 S.E. 720 (N.C. 1915)
• Decision Date: 03 November 1915
• Docket Number: 214.
• Parties: COOLEY ET AL. v. LEE ET AL.

86 S.E. 720

170 N.C. 18

COOLEY ET AL. v. LEE ET AL.

No. 214.

Supreme Court of North Carolina

November 3, 1915

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

Action by G. Frank Cooley and others against Xure Lee and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Under Revisal 1905, § 1583, a devise over after a life estate to the children of a living person vests in all children living at the termination of the life estate, whether they were born before the death of testator or not.

The pertinent facts set forth in the case agreed are very succinctly stated in his honor's judgment, as follows:

"This cause coming on to be heard upon the agreed statement of facts signed by counsel for plaintiffs and defendants, and being heard, and it appearing therefrom that G. M. Cooley died in the year 1894, domiciled in the county of Nash leaving a last will and testament, whereby he bequeathed and devised all his property, real and personal, to his wife, Mary J. Cooley, for the term of her natural life, and thereafter one-half thereof to James F. Cooley's heirs and the other one-half thereof to Roger A. P. Cooley and his heirs, that the said J. F. Cooley was married at the time of the death of his father, G. M. Cooley, and that G. Frank Cooley, Wallace D. Cooley, and all the plaintiffs, except Mary Lillian Cooley, had been born of said marriage and were living at the time of the death of the said G. M. Cooley, the said Mary Lillian Cooley having been born of the said marriage September 23, 1895, and it further appearing therefrom that on the 4th day of March, 1897, the said James F. Cooley and his wife, Carrie Cooley, Roger A. P. Cooley and his wife, Hattie Cooley, and Mary J. Cooley, widow of the said G. M. Cooley, executed and delivered to Jessie Lee, the grantor of the defendant Xure Lee, a deed purporting to convey in fee simple to the said Jessie Lee the land in controversy, being a portion of the lands devised in said will, with full covenants of warranty and seisin, which deed was duly registered in the office of the register of deeds of Sampson county November 17, 1897, and that thereafter the said Jessie Lee executed and delivered deeds purporting to convey said lands in fee simple to the defendant Xure Lee, dated November 16, 1897, and October 27, 1898, respectively, the first registered in said office November 17, 1897, and the other October 27, 1908, and it further appearing therefrom that the defendant Xure Lee purchased said lands in good faith, went immediately into the possession thereof, has since held the open and exclusive possession thereof under known and visible boundaries, and has made valuable improvements upon a portion thereof, that thereafter, on the 20th day of July, 1899, the said will of G. M. Cooley was duly proven and recorded in the office of the clerk of the superior court of Nash county, and thereafter, on July 10, 1910, a duly certified copy of said will and its probate was duly recorded in the office of the clerk of the court of Sampson county, and it further appearing therefrom that W. D. Cooley, one of the children of James F. Cooley, on July 1, 1906, conveyed all his interests in said lands under the said will to the defendant Mildred Cooley, that another of said children, Roger D. Cooley, on July 10, 1906, conveyed all of his interest under said will to Mary J. Cooley, the widow of said G. M. Cooley, and G. Frank Cooley, another of said children, has died since the beginning of this action, intestate and without issue, leaving a widow surviving him, and it further appearing to the court that Mary J. Cooley, the widow of G. M. Cooley, and the life tenant of said land, died September 4, 1908, and it further appearing that this action, in so far as it affects the defendant Xure Lee, was begun at May term, 1914, of this court, and that thereupon the court, being of the opinion that the statute of limitations did not begin to run against the plaintiffs and the said Mildred Cooley and in favor of the defendant Xure Lee until the death of the said Mary J. Cooley, the life tenant, September 4, 1908, and that there was no adverse possession by the defendant Xure Lee of the said lands against the plaintiffs and the said Mildred Cooley until that date, adjudges that the cause of action of the plaintiffs and the said Mildred Cooley is not barred by the statute of limitations; and it is further considered and adjudged by the court that the plaintiffs are the owners and that they recover of the defendant Xure Lee an undivided five-fourteenths interest in and to said land, and that the said Mildred Cooley is the owner and that she recover of the defendant Xure Lee an undivided one-fourteenth interest in and to said lands. It is further considered and adjudged by the court that the defendant Xure Lee is the owner in fee simple of an undivided eight-fourteenths interest in and to said lands. It is further considered and adjudged that the plaintiffs, other than Gladys H. Cooley and Mary J. Cooley, and the defendant Mildred Cooley, recover of the defendant Xure Lee their proportionate parts of the rents of said lands for three years next preceding May term, 1914, of this court, and that the plaintiffs Gladys Cooley and Mary Lillian Cooley recover of the defendant Xure Lee their proportionate parts of the rents of said lands from the death of Mary J. Cooley September 4, 1908."

From this judgment defendant excepts and appeals, assigning errors as follows:

"(1) For that his honor held that the plaintiffs were entitled to any part of the lands in controversy, under the will of Dr. G. M. Cooley, deceased; whereas, he should have held that said will was ineffectual to pass any title to the plaintiffs or to the defendant Mildred Cooley as against the defendant Xure Lee.

(2) For that his honor held that the plaintiffs' and the defendant Mildred Cooley's causes of action were not barred by the statute of limitations.

(3) For that his honor held that the statute of limitations did not begin to run against the plaintiffs' and the defendant Mildred Cooley's causes of action until the death of Mary J. Cooley, widow of Dr. G. M. Cooley, deceased; whereas, he should have held that the statute of limitations began to run as to each of the plaintiffs and the defendant Mildred Cooley on the 4th day of March, 1897, the date upon which the deed from R. A. P. Cooley and others to Jessie Lee was executed.

(4) For that his honor held that Mary Lillian Cooley was entitled to a one-fourteenth undivided interest in the lands in controversy; whereas, by virtue of the fact that she was born after the death of the said G. M. Cooley, testator, his honor should have held that she could take nothing by virtue of said will.

(5) For that his honor held that the plaintiffs and the defendant Mildred Cooley were entitled to any part of the rents and profits issuing from said lands."

Grady & Graham, of Clinton, for appellants.

Stevens & Beasley, of Warsaw, for appellees.

HOKE J.

On the facts embodied in the judgment, we concur with his honor that plaintiffs are entitled to five-fourteenths and defendant Mildred to one-fourteenth of the property in controversy.

It is admitted that the title was in G. M. Cooley, and that he died in the year 1894, having made his last will and testament devising the property in controversy to his widow, Mary J Cooley, for life, and then "one half to his son R. A. P. Cooley and his heirs, and the other half to the heirs of James F. Cooley, his other son"; that James F. Cooley was living at the time of the death of the devisor, and still is, and plaintiffs are his children, six of whom were born at the time of devisor's death, and one after such death and during the life of devisor's wife, life tenant under the will. Under our statute (Revisal, § 1583) this devise of the one-half interest, subject to a life estate in the widow, being to the heirs of a living person, conveys such interest to the children of the person designated, and, being in terms to a class, under various decisions in our state, it will include all who are members of the class and fill the description at the time the particular estate terminates. Graves v. Barrett et al., 126 N.C. 267, 35 S.E. 539; Irvin v. Clark, 98 N.C. 437, 4 S.E. 30; Hawkins & Wife v. Everett, Ex'r, 58 N.C. 42; Simpson v. Spence and Wife, 58 N.C. 208; Knight v. Knight, 56 N.C. 168. In the case of Wise v. Leonhardt, 128 N.C. 289, 38 S.E. 892, in which the after-born children were excluded, the decision was made to rest on the ground that, in order to an application of the principle to devises of realty, there must be an intervening estate for life or years between the death of the testator and the coming into the possession of the estate in...