In re Rees

• Decision Date: 13 October 1920
• Docket Number: 261.
• Citation: 104 S.E. 358,180 N.C. 192
• Parties: IN RE REES ET AL. IN RE LEE'S ESTATE.
• Court: North Carolina Supreme Court

104 S.E. 358

180 N.C. 192

IN RE REES ET AL. IN RE LEE'S ESTATE.

No. 261.

Supreme Court of North Carolina

October 13, 1920

Appeal from Superior Court, Wake County; Kerr, Judge.

Controversy without action by Jennie Lee Rees and others, brought under Revisal 1905, § 1590, for the sale of a contingent remainder devised by a will of Jennie L. Lee, deceased. From the judgment for the sale of the property and division of the proceeds, all parties appeal. Moditied and affirmed.

The object of the controversy is to sell the house and lot in Raleigh devised to Mrs. Jennie Lee Rees, with remainder over and reinvest the proceeds to meet the contingencies stated in the said will.

Robert W. Winston, of Raleigh, for Jennie Lee Rees and husband.

J. C Little, of Raleigh, for next friend.

CLARK C.J.

Jennie L. Lee devised the property in question to her daughter Jennie (now Mrs. Rees) with limitation that if she should "die leaving issue surviving her then to such issue and their heirs forever," but if she "shall die without issue surviving her then the property to return to my eldest daughter." In Rees v. Williams, 164 N.C. 128 80 S.E. 247, the court construing this devise, held that the vesting of the estate in remainder depended upon the contingency of the death of the devisee without leaving issue surviving her, and hence during her lifetime she could not convey an indefeasible title for should she die leaving issue, the title would vest in them. This case was before us on rehearing (Rees v. Williams, 165 N.C. 201, 81 S.E. 286), and was reaffirmed. It has been cited and approved in the cases cited to Rees v. Williams, 165 N.C. 132, in Anno. Ed., and more recently in Jenkins v. Lambeth, 172 N.C. 470, 90 S.E. 513; Whitfield v. Douglass, 175 N.C. 48, 94 S.E. 667, and cases there cited; Kirkman v. Smith, 175 N.C. 582, 96 S.E. 51; Patterson v. McCormick, 177 N.C. 455, 99 S.E. 401, and at last term in Thompson v. Humphrey, 179 N.C. 51, 53, 101 S.E. 738; Love v. Love, 179 N.C. 117, 101 S.E. 562; and Jarman v. Day, 179 N.C. 319, 102 S.E. 402. Mrs. Rees has since obtained from her sister, Mrs. Schlesinger and husband, and from her brother, Harry Lee and wife, conveyances of their interests.

Harry Lee, the brother of Mrs. Rees, and his two infant children, also the two infant children of Mrs. Schlesinger and the infant child of Mrs. Rees are made parties, the infants appearing by next friend, duly appointed Thus all the classes who could participate as heirs at law of Mrs. Rees are represented. She resides in Annapolis, Md., and her only brother, Harry Lee, in Raleigh, N.C. The petition, concurred in by all parties, represents that W. H. Pitman has offered $8,500 for the property; that the house is dilapidated; that the necessary repairs, taxes, and insurance nearly absorb the entire rental; that the property is located in an undesirable locality, where it is not likely to advance in value; that $8,500 is a fair and full price, and that the best interests of all parties, including the infants, demand a sale of the property and the acceptance of the offer of W. H. Pitman. The court found all the above allegations to be true, and approved the sale to W. H. Pitman at the price named, who has declined to pay his bid, upon the ground that the commissioner cannot make a good and indefeasible title. The court held that the commissioner could convey a good and indefeasible title to the property, and adjudged that the purchaser pay the sum bid by him.

This...