Hodges v. Lipscomb
| Decision Date | 20 October 1903 |
| Citation | 45 S.E. 556,133 N.C. 199 |
| Parties | HODGES et al. v. LIPSCOMB et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wilson County; Ferguson, Judge.
Petition by Samuel Hodges and others against James Lipscomb and others for the purpose of selling for reinvestment lands in which there was a contingent remainder. From a judgment permitting the sale, defendants appeal. Affirmed.
Civil action, brought for the purpose of selling certain land for reinvestment under the provisions of chapter 99, p. 123, Laws 1903. The land ordered by the court to be sold for reinvestment was devised by the testator to his adopted daughter Minnie for life, "and at her death to such child or children as she may leave surviving her, and if any of said children shall die, leaving issue, prior to the death of said Minnie, in that event such issue shall represent and take the share of its immediate ancestor." Another piece of land was given to testator's adopted daughter Bettie for life, with remainders over in the same terms used above. The ultimate remainder is in the following words: "If both the said Minnie and the said Bettie shall die, leaving no child or children, nor the issue of any child or children living at their death or the death of the survivor, then and in that event I direct that my entire estate shall be divided equally between my heirs at law and distributees and the heirs at law and distributees of the said Minnie and Bettie claiming and entitled through their mother." A full recital of the limitations will be found in the former case. 128 N.C. 57, 38 S.E. 281. The said Minnie and Bettie and their children and grandchildren are the plaintiffs in this action. They have made parties defendant all those collateral heirs at law and distributees of the said Minnie and the said Bettie and of the testator who would be their respective heirs at law and distributees if the contingency should happen now, and they have sought to make all other persons who in any contingency would become interested in said land parties to this action, through a guardian ad litem appointed by the court for that purpose on motion of plaintiffs.
F. A. & S. A. Woodard, for appellants.
Womack & Hayes and Connor & Connor, for appellees.
CLARK C.J. (after stating the facts).
All the facts alleged in the complaint are admitted in the answer and that a sale of the land described in the complaint will be beneficial, not only to the plaintiffs, but to the defendants, the contingent remaindermen, if the interests of the defendants can be protected by the decree, and the purchaser assured of a good title. This will was passed upon by this court in Hodges v. Lipscomb, 128 N.C. 57, 38 S.E. 281, and it was held that the court had no power to order a sale with the parties then before the court. In this action additional parties have been made, and summons has been issued against all the parties in esse, who would be contingent remaindermen if the contingency should occur, at the date of the summons. An affidavit was filed, containing, among others, the following averments: "That the defendants named in the summons which has been issued in this action are the persons to whom said real estate would go at this time if the said Minnie and Bettie should now die without leaving any child or children, or the issue of any child or children surviving the said Minnie and Bettie." "That it is impossible for affiant to say what other persons may become interested in said lands, for that it is impossible for him to fix the time of the death of the said Minnie and Bettie without any children surviving, or the issue of such children, or whether at such time any or all of the defendants may be living or not, or who their respective heirs will be, for which reason this affiant avers that the names and residences of the other persons who may become interested in any contingency in said lands are unknown." Upon motion of the plaintiffs, the clerk of the court caused publication to be made of the summons for four weeks in a newspaper published at the county seat, together with a concise statement of the purposes of the action, and directing the defendants, "and all others who in any contingency may become interested in the said lands," to appear at the succeeding term of said court, and "answer, demur, or otherwise plead to the complaint; otherwise the relief therein demanded will be granted." The plaintiffs alleged in their complaint that "it is impossible for the plaintiffs to allege who are the persons who may become interested in the said lands under the terms and conditions of said will, for that it is impossible for them to fix the date of the death of the said Minnie D. Hodges and the said Bettie E. McDaniel without child or children, or issue of said child or children, but that the plaintiffs have applied to this court for the appointment of a guardian ad litem and representative for the said unknown persons who may in any contingency become interested in the said lands, and who are not otherwise made parties hereto and properly represented herein." At the appearance term the court appointed a guardian ad litem for such unknown persons, as prayed. Answer was duly filed by such guardian ad litem, admitting the facts set out in the complaint, and submitting to the judgment of the court. Judgment was rendered appointing a commissioner to receive bids for a lot of land described in the complaint, and to report these bids to the court for its further direction as to sale and reinvestment of proceeds.
The plaintiffs insist that this proceeding constitutes a compliance with the provisions of section 2, c. 99, p. 123, Laws 1903. The only respect in which it is supposed there is a defect is that there was a failure to secure personal service of summons upon the heirs at law of the brothers of the grandfather of Minnie D. Hodges and Bettie McDaniel, if there are any such now in being. The history of judicial decision on this subject is exhaustively given by the court in the...
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