Fulton v. Waddell

• Decision Date: 05 May 1926
• Docket Number: 354.
• Citation: 132 S.E. 669,191 N.C. 688
• Parties: FULTON et al. v. WADDELL.
• Court: North Carolina Supreme Court

132 S.E. 669

191 N.C. 688

FULTON et al. v. WADDELL.

No. 354.

Supreme Court of North Carolina

May 5, 1926

Appeal from Superior Court, Forsyth County; Finley, Judge.

Controversy without action between J. D. Fulton and others, plaintiffs and John D. Waddell, defendant. Judgment for defendant, and plaintiffs appeal. Affirmed.

Under will devising land for life, remainder to be divided between all testator's children living at life tenant's death or their heirs, held that remainder vested in children living at life tenant's death to exclusion of issue of deceased children.

John D Waddell, Sr., died in the year 1887, leaving a last will and testament, the pertinent part of which is as follows:

"I loan unto my two daughters, Ann E. Matthews, (widow), and Martha, my daughter, a certain tract or parcel of land *** to have and to hold during their natural life. After their death the above property to be sold and the money arising there to be equally divided between all my children then living or their heirs."

At the time of the death of the testator, he left him surviving five children, to wit, Ann E. Matthews, Martha Waddell, James H Waddell, Lucy Fulton, and John D. Waddell, Jr. Ann E. Matthews, one of the life tenants, died without issue in the year 1923. Martha Waddell, the other life tenant, died without children in 1921. James H. Waddell died in 1913, leaving three children. Lucy Waddell Fulton died in 1888, leaving her surviving seven children. At the time of the death of the life tenants, there were three grandchildren of Lucy Waddell Fulton living, being the children of her daughter, Minnie Fulton, who intermarried with J. W. Angel. The plaintiffs consist of the children of James H. Waddell, Lucy Waddell Fulton, and the grandchildren of Lucy Waddell Fulton, and the defendant is the sole surviving child of testator, John D. Waddell, Sr.

In 1888, Lucy Waddell Fulton conveyed her interest in the property to John D. Waddell. In the same year Jas. H. Waddell and wife conveyed their interest in the property to John D. Waddell, Martha R. Waddell, and Ann E. Matthews. In 1915, Martha R. Waddell and Ann E. Matthews conveyed their interest in the property to John D. Waddell.

John D. Waddell, being under the impression that he was the sole owner of the property, has erected valuable improvements thereon, and this action is instituted in order to determine the rights of the parties in and to the property in controversy. The trial judge "ordered and adjudged that the defendant is the owner in fee of the land in controversy, freed and discharged of any and all claims of plaintiffs or either of them in and to the same."

From the foregoing judgment, plaintiffs appealed.

McMichael & McMichael, of Winston-Salem, for appellants.

J. E. Alexander and L. M. Butler, both of Winston-Salem, for appellee.

BROGDEN J.

The question is this: Under a devise of land for life and at the death of the life tenant, to be "equally divided between all my children then living or their heirs," does the sole survivor of the children of testator take the entire property, or do the children and descendants of brothers and sisters of such survivor share in the property? The true answer to the question, gathered from decisions in point, may be stated in three propositions, to wit:

(1) The remainder is contingent. Starnes v. Hill, 16 S.E. 1011, 112 N.C. 1, 22 L. R. A. 598; Whitesides v. Cooper, 20 S.E. 295, 115 N.C. 570; Bowen v. Hackney, 48 S.E. 633, 136 N.C. 187, 67 L. R. A. 440; James v. Hooker, 90 S.E. 925, 172 N.C. 780; Mercer v. Downs, 131 S.E. 575, 191 N.C. 182.

(2) The remainder is limited to a class, and the class is to be ascertained at the termination of the life estate. Bowen v. Hackney, 48 S.E. 633, 136 N.C. 187, 67 L. R. A. 440; Witty v. Witty, 114 S.E. 482, 184 N.C. 375.

(3) The person or persons answering the description when the life estate terminates take the whole property. In other words, when the contingency upon which the estate is to vest happens, the law immediately calls the roll of the class. Those who can answer take. Gill v. Weaver, 21 N.C. 41; Sanderlin v. Deford, 47 N.C. 74; Knight v. Knight, 56 N.C. 167; Hawkins v. Everett, 58 N.C. 42; Grissom v. Parish, 62 N.C. 330; Britton v. Miller, 63 N.C. 270; Wise v. Leonhardt, 38 S.E. 892, 128 N.C. 289; Cooley v. Lee, 86 S.E. 720, 170 N.C. 18; Witty v. Witty, 114 S.E. 482, 184 N.C. 375; Phinizy v. Foster, 7 So. 836, 90 Ala. 262.

The prevailing rule, governing in such c...