Ellwood v. Plummer
| Decision Date | 31 January 1878 |
| Court | North Carolina Supreme Court |
| Parties | SOPHIA ELLWOOD and others v. R. A. PLUMMER and others. |
CIVIL ACTION to recover Possession of Land, tried at Fall Term, 1877, of MECKLENBURG Superior Court, before Kerr, J.
A. C. Miller died intestate in Mecklenburg County, and the plaintiffs--Sophia Ellwood, M. J. Orr (wife of J. L. Orr) and T. J. Wilson--were his only heirs at law. The land described in the complaint was in the possession of the defendants who claimed the same under the will of Susannah Alexander, only the 5th item of which accompanies the case, and is;--“I give, &c., to Silas Orr my plantation to have and to hold in trust for the sole use of my two daughters during their natural life time * * * said plantation to be equally divided as near as can be by three persons chosen for that purpose * * * each of my said daughters to hold and have the use of the part they now live on. And it is further my will that after the death of either of my daughters * * * that the part of the place occupied by them be rented out by said Silas Orr, and the proceeds equally divided between my three grandchildren, R. A. Plummer (and the other defendants) until the death of the other daughter, at which time it is my will that my plantation * * * be equally divided into three lots between my three grand-children * * *.
The plaintiffs claimed under a deed from the Sheriff executed on the 25th of July 1869, to their ancestor, A. C. Miller, who was the purchaser at an execution sale. This deed conveyed the interest of defendant R. A. Plummer (the defendant in the execution) in said land to said purchaser.
It was agreed that if the Court should be of opinion that the interest of said defendant, in the land devised by said will to the daughters for life, was liable to be sold under execution against the defendant during the life of said daughters, then there shall be judgment for plaintiffs, otherwise judgment for defendants. His Honor adjudged that plaintiffs do recover, and the defendants appealed.
Messrs. A. Burwell and W. H. Bailey, for plaintiffs .
Messrs. Jones & Johnston, for defendants .
The only question presented by the record is whether the estate of R. A. Plummer was a vested or contingent interest at the time of the Sheriff's sale, during the term of the life tenant, and that depends on the question whether his estate vested at the death of the testatrix or at the death of the surviving life tenant who is now dead. This seems to be a plain question both from the authorities and the language of the testatrix.
A copy of the entire will is not before us, but only extracts from which alone we are to gather the intention. If the intention was uncertain and doubtful, the Court would incline to a vested estate,...
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