Hass v. Hass

• Decision Date: 06 June 1928
• Docket Number: 500.
• Citation: 143 S.E. 541,195 N.C. 734
• Parties: HASS et al. v. HASS et al.
• Court: North Carolina Supreme Court

143 S.E. 541

195 N.C. 734

HASS et al. v. HASS et al.

No. 500.

Supreme Court of North Carolina

June 6, 1928

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

Action by L. J. Hass and others against Frances E. Hass and others. From the judgment, plaintiffs appeal. Affirmed.

Civil action for the recovery from defendant Frances E. Hass of damages for the wrongful cutting by her of timber on land described in the complaint, and for the construction of the last will and testament of Mary E. Hass, deceased, in order to determine the title to said land, as between plaintiffs heirs at law of Mary E. Hass, and defendants, other than J A. Gaither, administrator, claiming under said will.

By consent, the facts involved in the controversy were found by the court, from the evidence.

From the judgment upon the facts found by the trial court plaintiffs appealed to the Supreme Court.

Remainder in "my estate" was remainder in both real and personal property.

A. A Whitener, of Hickory, and Jesse C. Sigmon, of Newton, for appellants.

Dennis G. Brummitt, Atty. Gen., Frank Nash, Asst. Atty. Gen., and W. C. Feimster, of Newton, for appellee State School for the Blind and Deaf.

CONNOR J.

Mary E. Hass died in Catawba county, N. C., on or about March 30, 1923. On August 21, 1894, she executed a paper writing sufficient in form to constitute, and purporting to be, her last will and testament. This paper writing has been duly probated as her last will and testament, first, in common form by the clerk of the superior court of Catawba county, and thereafter upon caveat by plaintiffs herein, as heirs at law of Mary E. Hass, in solemn form by judgment of the superior court of said county. Plaintiffs herein, and defendant Frances E. Hass are the heirs at law of Mary E. Hass, deceased. Eliza M. Hass, a sister of Mary E. Hass, named as one of the legatees and devisees in said last will and testament, died prior to the death of the testatrix, Mary E. Hass.

The items of the last will and testament of Mary E. Hass, deceased, material to the consideration and decision of the questions presented by this appeal, are as follows:

"1. I will, devise and bequeath unto my beloved sisters, Frances E. Hass and Eliza M. Hass, after the payment of my debts and funeral expenses, including tombstones, all of my property, both real and personal, to have, hold, use and possess the same, free from the control of all persons and jurisdictions whatsoever, during their natural lives, or the life of the survivor.

2. It is my will and desire that whatever remains of my estate, after the death of my sisters, be paid to the authorities in control of the Deaf, Dumb and Blind Asylum of the State of North Carolina, for the use and benefit of the indigent children therein, born blind, of the Caucasian race. It is my will that my real estate be not sold, but that the rents and profits for ninety-nine years be paid to the authorities aforesaid, for the blind children aforesaid.

3. I hereby exclude L. J. Hass, his heirs or devisees from any and all share or interest in my estate.

4. Upon my death, I direct my executor, hereinafter named, to collect all debts due me, and after paying funeral expenses as aforesaid, and costs of executing this will, he is to pay over and deliver whatever remains to my sisters or the survivor."

The executor named in said will died prior to the death of the testatrix. The personal estate of the said Mary E. Hass, deceased, was administered by defendant J. A. Gaither, as her administrator, c. t. a. He has paid all the debts of the testatrix, and all the costs and expenses of the administration. He has duly filed his final account as administrator, c. t. a., of said Mary E. Hass, and has paid to defendant Frances E. Hass the sum of $1,200, in accordance with the provisions of item 4 of said will.

At the date of her death, the said Mary E. Hass was seized in fee and in possession of a tract of land, containing 125 acres, situate in Catawba county, on the hard-surfaced highway, about two miles south of the town of Newton. Defendant Frances E. Hass has entered into possession of said tract of land, claiming a life estate therein, under the provisions of item 1 of said will. She has cut and sold valuable timber from said land. Plaintiffs, as heirs at law of Mary E. Hass, allege that the cutting and sale of said timber from said land by defendant Frances E. Hass was unlawful and wrongful. They demand judgment that they recover of said Frances E. Hass damages for such unlawful and wrongful cutting, contending that, as heirs at law of Mary E. Hass, they are the owners, and entitled to possession of said land, notwithstanding the paper writing which has been probated as the last will and testament of Mary E. Hass, or, if this contention is not sustained, in any event, that they are the owners of an estate in remainder in said land, after the death of Frances E. Hass, and that the defendant the State School for the Blind and Deaf, at most, has only an estate for years therein, after the death of Frances E. Hass, the life tenant, under the will. Manifestly, the right of plaintiffs to recover damages of defendant, Frances E. Hass, for cutting and selling timber from the land described in the complaint, involves the question presented by this appeal, with respect to the title to said land. The answer to this question must be determined by a construction of the last will and testament of Mary E. Hass. The court below, in accordance with its opinion as to the proper construction of said will, ordered, decreed, and adjudged, as follows:

"(1) That under said will the defendant Frances E. Hass takes and is entitled to a life estate in all the property of which the said Mary E. Hass died seized and possessed.

(2) That under said will the defendant the State School for the Blind and Deaf takes and is entitled to an estate in fee simple absolute, in remainder, after and upon the termination of the said life estate of the said Frances E. Hass, in and to all the property of which the said Mary E. Hass died seized and possessed.

(3) That the second sentence in item 2 of said will is an attempted restraint upon the alienation of said property, and that the same is therefore void and of no effect, and that upon the death of Frances E. Hass, the defendant the State School for the Blind and Deaf will obtain and have full title in fee simple absolute to said property, and full control thereof, without restraint or restriction upon its use, sale, or other disposition.

(4) That the plaintiffs have no right, interest, or title in and to any of the property of which the said Mary E. Hass died seized and possessed."

It was thereupon further adjudged that plaintiffs and the sureties on their prosecution bond pay the costs of this action to be taxed by the clerk.

Upon their appeal from the foregoing judgment to this court, plaintiffs rely upon assignments of error, based upon their exceptions to findings of fact made by the trial court, and also to certain portions of said judgment. They did not except to that portion of said judgment in which it is adjudged that Frances E. Hass, under the will of Mary E. Hass, takes and is entitled to a life estate in all of the property of which the testatrix died seized and possessed, including the land from which it was admitted that she had cut and sold valuable timber.

At the date of the execution of the last will and testament of Mary E. Hass, to wit, August 21, 1894, there was no corporation or institution in existence, having as its legal name, or official designation, "the Deaf, Dumb and Blind Asylum of the State of North Carolina." Plaintiffs therefore contended that item 2 of said will, by which the testatrix expressed her will and desire that whatever remained of her estate, after the death of her sisters, named in item 1, be paid to the authorities in control of said asylum, is void, for that "said paper writing undertakes to bequeath and devise property and land to an alleged institution, which in fact does not now exist, and which never has existed." With respect to this contention, the court found the facts as follows:

"(3) Upon a

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