Gillespie v. Allison

• Court: North Carolina Supreme Court
• Writing for the Court: MacRAE, J.
• Citation: Gillespie v. Allison, 115 N.C. 542, 20 S.E. 627 (N.C. 1894)
• Decision Date: 27 December 1894
• Parties: GILLESPIE et al. v. ALLISON et al.

20 S.E. 627

115 N.C. 542

GILLESPIE et al. v. ALLISON et al.

Supreme Court of North Carolina

December 27, 1894

Appeal from superior court, Mecklenburg county; Winston, Judge.

Suit by Saddler Gillespie and others against R. W. Allison and others for partition of land. There was a judgment for plaintiffs and defendants appeal. Affirmed.

A remainder after an estate devised to one, to have so long as she may remain a widow, is a vested remainder.

W. J Montgomery and Walker & Cansler, for appellants.

Clarkson & Duls, for appellees.

MacRAE J.

There being no contention as to the interests of the parties in the lands sought to be partitioned, or sold for partition, it appears that the petitioner is, by virtue of the wills of Henry Owens and Jane Owens, tenant of said lands so long as she remains the widow of W. A. Owens, that she has sold her interest in one of the tracts to one of the other petitioners, and that the other parties are tenants in remainder of said lands, according to their respective rights, as set out in the petition and answer. Before the act of 1887 (chapter 214), cotenants in remainder or reversion had no right to enforce a compulsory partition of land in which they had such estate. Wood v. Sugg, 91 N.C 93; Aydlett v. Pendleton, 111 N.C. 28, 16 S.E. 8. The provisions of the above-named act are substantially:

Section 1. That actual partition may be made of a part of the land sought to be partitioned, and a sale and partition of the remainder, or a part only of any land held by tenants in common may be partitioned, and the remainder held in common.

Sec. 2. That the existence of a life estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, and for the purposes of partition the tenants in common shall be deemed seised and possessed as if no life estate existed. But this shall not interfere with the possession of the life tenant during with the existence of his estate.

Sec. 3. That, in all proceedings for partition of land whereon there is a life estate, the life tenant may join in the petition or proceeding, and on a "note [this word is an evident mistake, and should be "sale"] the interest on the value of the share of the life tenant shall be received and paid to such life tenant annually; or in lieu of such annual interest, the value of such share during the probable life of such life tenant shall be ascertained and paid out of the proceeds to such life tenant absolutely."

The life tenant and her assignee, with others, who are tenants in remainder, ask for a sale for partition; and, as the life, tenant has sold her interest in one of the tracts, they ask that the value of an annuity of 6 per cent. of the proceeds of the sale of that tract be paid over to him, and that the other tract be sold for partition, and the proceeds divided according to the interest, etc. The other remainder-men are defendants. They contend:

1. That the estate of the petitioner Alice B. Owens is not a life estate, in the contemplation of the act of 1887, because the said estate may be terminated by her marriage at any time before her natural life expires. Estates of this nature are called "estates durante viduitate," and such are defined to be "estates for life, determinable on her ceasing to be such widow, during their continuance freeholds." Co. Litt. 42a; Cruise, Dig. 115; 4 Kent, Comm. 26; 2 Bl. Comm. 121. Such estates, being so long known to the law as "life estates," are within the meaning of the words used in the act of 1887, as such words are to be taken in their ordinary and legal acceptation.

2. It is contended that the remainders are contingent, and as such the petitioners are not entitled to have partition of the same. But they cannot be contingent remainders, either according to the definition of Blackstone or the arrangement of Fearne, for one criterion of all such remainders is that the particular estate may chance to be determined, and the remainder never take effect. Now, the particular estate is that durante viduitate. It may last for the life of the tenant, and it may be determined by her marriage; but in either event the remainder immediately takes effect, for it is invariably fixed to remain to determinate persons after the particular estate is spent. See 4 Kent, Comm. 202 et seq., where the definitions both of Blackstone and of Fearne are given of vested and contingent remainders. The remainder-men in our case have a present, fixed right of future enjoyment. Their estates are vested. But, if they were contingent, it does not follow that there could not be partition, unless it be that there is no one before the court to represent all of the contingent interests. Aydlett v. Pendleton, supra; Overman v. Tate, 114 N.C. 571, 19 S.E. 706.

3. It is further objected that it is impracticable in this case to give to the life tenant the choice offered by the act of 1887, either to have the interest on the value of the life tenant's share, or in lieu thereof the value of such share during the probable life of such life tenant, because the life estate may determine by the marriage of the tenant and therefore there can be no rule for computing the present value of such estate. The third section of the statute seems...