Hobgood v. Hobgood

• Decision Date: 22 September 1915
• Parties: HOBGOOD v. HOBGOOD ET AL.
• Court: North Carolina Supreme Court

86 S.E. 189

169 N.C. 485

HOBGOOD v. HOBGOOD ET AL.

Supreme Court of North Carolina

September 22, 1915

Appeal from Superior Court, Edgecombe County; Frank Carter, Judge.

Action by Mollie Hobgood against Logan Hobgood and others. From a judgment for petitioner, defendants appeal. Modified.

Under a will vesting in a surviving devisee a defeasible fee, a conveyance by all devisees whose title depended upon that of the survivor held to entitle such survivor to take the entire fund.

The facts chiefly relevant to the inquiry are very well set forth in the complaint as follows, with the addition that the recited consideration of the deed of Logan Hobgood to the plaintiff, his mother, is natural love and affection and $1:

"(2) That Martha A. Knight, late of Edgecombe county, North Carolina, died leaving a last will and testament, which is recorded in the office of the clerk of the superior court of Edgecombe county, in Will Book H, page 420, the third item of which is as follows: 'I give and devise all my right, title and interest in and to the tract of land situate in said county and state, upon which I now reside to my sister, Mary L. Drew, during the term of her natural life, and after her death to my nieces, Pattie Pippen and Mollie Hobgood, their heirs and assigns, share and share alike. If, however, the said Pattie Pippen shall die leaving no child and no representative of a child, it is my will and desire that the one-half interest in the realty devised to her as aforesaid in this item of my will shall go to the said Mollie Hobgood, her heirs and assigns; but if, on the other hand, the said Mollie Hobgood shall die leaving no child, and no representative of a child, it is my will and desire that the one-half interest in the realty devised to her as aforesaid in this item of my will shall go to the said Pattie Pippen, her heirs and assigns. In the event that the said Pattie Pippen, and Mollie Hobgood shall both die leaving no child, and no representative of a child, it is my will and desire that the said realty devised to them as aforesaid in this item of my will shall go to my nephews Joseph Pippen, Walter Pippen, William Pippen, Lafayette Pippen and Thurston Pippen, their heirs and assigns.'

(3) That Mary L. Drew is now dead, and the land mentioned in item 3 of said will of Martha A. Knight, and so devised to Pattie Pippen and Mollie Hobgood, was on the _____ day of _____, _____, sold by W. H. Johnston, administrator d. b. n. of Peter E. Knight, and the proceeds thereof belonging to the said Martha A. Knight, to wit, the sum of $942.67, was paid by said W. H. Johnston, administrator, d. b. n., to L. B. Knight and henry Johnston, executors of the said Martha A. Knight.

(4) That at the June term, 1899, of the Edgecombe county superior court in an action entitled 'W. H. Johnston, Administrator d. b. n. with the Will Annexed of Peter E. Knight, L. B. Knight and Henry Johnston, Executors of the Will of Martha A. Knight, and Others, against William Pippen and Others,' a judgment was rendered in which Henry Johnston was appointed trustee for the sum of $445.10 to be held for the use and benefit of the said Pattie Pippen under the terms of item 3 of the will of the said Martha A. Knight, and Dr. Julian M. Baker was appointed trustee for the sum of $445.09 to be held for the use and benefit of the said Mollie Hobgood, under the terms of item 3 of the will of the said Martha A. Knight, these being the amounts paid to the said L. B. Knight and Henry Johnston, executors, by the said W. H. Johnston, administrator as aforesaid. (See page 259, minute docket of June term, 1899, of the superior court of Edgecombe county.)

(5) That the said Henry Johnston and Dr. Julian M. Baker accepted said trusts and entered upon their respective duties, and they now have on hand the sums of $445.10 and $445.09, and some interest, respectively, and held under the terms of their said trusts.

(6) That the said Pattie Pippen is dead, and left no child or representative of a child; that Joseph Pippen and William Pippen, two of the residuary devisees under item 3 of the will of said Martha A. Knight, are dead and left no child or representative of a child or children; that Mollie Hobgood is now living, and has one child over 21 years of age, who is a defendant in this action; and Walter Pippen, Lafayette Pippen, and Thurston Pippen, the remaining residuary devisees under item 3 of the said will, are now living.

(7) That on the 12th day of March the said Walter Pippen, Lafayette Pippen, and Thurston Pippen, the remaining residuary devisees under the will of the said Martha A. Knight, for proper and legal consideration, executed and delivered to the said Mollie Hobgood a certain paper writing by the terms of which the said Walter Pippen, Lafayette Pippen, and Thurston Pippen did give, grant, assign, alien, and convey to the said Mollie Hobgood, her heirs and assigns, all their right, title, and interest which they now have or may hereafter have in and to the funds now in the hands of Henry Johnston and Dr. Julian M. Baker, trustees of the funds paid them by L. B. Knight and Henry Johnston, executors of the will of the said Martha A. Knight. That on the 29th day of April, 1915, Logan Hobgood, the only child of Mollie Hobgood, plaintiff in this action, in consideration of love and affection and $1, executed and delivered to said Mollie Hobgood a certain paper writing by the terms of which he granted, assigned, aliened, and conveyed to said Mollie Hobgood all his right, title, and interest which he then had, or might thereafter have, in and to said trust funds held by Henry Johnston and Dr. Julian M. Baker, trustees as aforesaid; and on the 3d day of May, 1915, Thurston Pippen and M. V. Pippen, his wife, and Lafayette Pippen and Glynn Pippen, his wife, executed and delivered to said Mollie Hobgood a certain paper writing by the terms of which they gave, granted, assigned, aliened, and conveyed to said Mollie Hobgood all their right, title, and interest which they then had, or might thereafter have, in and to said trust funds held by Henry Johnston and Dr. Julian M. Baker, trustees as aforesaid. That copies of these conveyances are hereto annexed and made a part of this allegation.

(8) That the above-named parties, to wit, Walter Pippen (unmarried), Thurston Pippen and wife, M. V. Pippen, Lafayette Pippen and wife, Glynn Pippen, and Logan Hobgood, are the only persons, other than said plaintiff, who could in any way become interested in said trust funds held by Henry Johnston and Dr. Julian M. Baker, trustees, as aforesaid."

The answer substantially admits the above allegations, except that it sets forth the exact terms of the decree under which the trust fund is held, as follows:

"A decree was entered, as set forth in said paragraph, appointing Henry Johnston trustee of the fund of $445.10 to be held for Pattie Pippen, and Dr. Julian M. Baker was appointed trustee for the sum of $445.09 to be held for Mollie Hobgood, but the terms of trust in said decree read as follows, viz.: Pay to J. M. Baker $445.09 'to be held by him upon the following uses and trusts, to wit, to invest the same and pay the income arising therefrom annually to Mrs. Mollie Hobgood, during her natural life, and at her death, leaving a child or a representative of a child, then to pay said trust fund (the principal thereof) to said child or representative of a child. But, in the event of her death leaving no child and no representative of a child, then the said Julian M. Baker, trustee, is to pay the income arising from said trust fund to Pattie Pippen during her life, and at her death leaving a child or representative of a child then to pay said trust fund to such child or representative of a child. In the event that said Mollie Hobgood and Pattie Pippen shall both die leaving no child or representative of a child, the said Julian M. Baker, trustee, is to pay said trust fund to Joseph Pippen, Walter Pippen, William Pippen, Lafayette Pippen, and T. F. Pippen, share and share alike.' "

Upon the facts, the court, being of opinion that the fund held by Henry Johnston, originally for Pattie Pippen, now deceased, vested, on such death, absolutely in the petitioner, entered judgment that the same be paid to her, less certain costs and fees, and being of opinion that the fund held by Julian Baker, representing the original interest of petitioner, should be further held, adjudged that, as to that portion, the trustee, Julian Baker, should continue to invest the fund and pay the interest to the petitioner during her natural life, as directed by the former decree. To which judgment the trustee, Henry Johnston, having duly excepted, appealed.

G. M. T. Fountain & Son, of Tarboro, for appellants.

Allsbrook & Phillips, of Tarboro, for appellee.

HOKE J.

The fund in the hands of these two trustees was evidently designed and intended by the court and parties interested to stand in lieu of the land and to be subject to the terms and conditions of the will of Martha A. Knight, by whom it was devised. Recurring, then, to the clause of...