Jessup v. Nixon
| Decision Date | 27 April 1927 |
| Docket Number | 11. |
| Parties | JESSUP et al. v. NIXON et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Perquimans County; Grady, Judge.
Controversy without action between Cornelia T. Jessup and another and Thomas Nixon and others. From a judgment for defendants plaintiffs appeal. Affirmed.
See also, 136 S.E. 722.
Controversy without action on an agreed statement of facts. Francis Nixon, Sr., died on November 26, 1887, at the age of 89 years, leaving a last will and testament dated July 27, 1887 which was duly admitted to probate on November 30, 1887. The second item as drafted was as follows:
Lines were drawn across this item, and it is contended that it was canceled by the testator after the death of his son, Thomas.
Item 14 is in these words:
Of the children of Thomas Nixon and Cornelia, his wife, viz., Francis, Jr., Joseph T., Henry B., James W., Mary L., Harriett, and Thomas, all survived the life tenant, except Joseph T. Nixon, who, intestate and without issue, predeceased the testator on January 13, 1885, aged 26 years, and Francis Nixon, Jr., who, intestate, predeceased the life tenant on the 30th day of March, 1896, aged 49 years, leaving him surviving, as his heirs at law, the plaintiffs, aged respectively 6 and 5 years, another daughter, Kate, aged 4 years, who died intestate and without issue, on the 8th day of August, 1913, and a posthumous child, which died intestate and without issue, on the 22d day of January, 1905. Francis Nixon, Jr., was also survived by his widow, Susan Nixon, whom he married on November 6, 1888, and who is now living. Cornelia Nixon, the life tenant, never remarried and died on the 20th day of March, 1899, aged 69 years. It will be noted that, in the facts agreed, the defendants, having ascertained they could not sustain it, abandoned their plea of the statute of limitations.
The plaintiffs contend that their father, Francis Nixon, Jr., deceased, acquired under the last will and testament of the said Francis Nixon, Sr., deceased, a one-sixth undivided interest in and to the said premises described and referred to herein; or that the plaintiffs, together with their deceased sisters, whose heirs at law they are, acquired such interest under said will and that by reason thereof they are now, together with that certain undivided interest, which admittedly they own, by inheritance through James W. Nixon, the owners, and entitled to the possession of a one-fifth undivided interest in and to the said lands.
The defendants, on the other hand, contend that neither the plaintiffs, nor their father, Francis Nixon, Jr., acquired any interest in said land under the said last will and testament of said Francis Nixon, Sr., deceased, and that the plaintiffs are the owners only of that certain undivided interest, acquired by inheritance from James W. Nixon.
It was agreed that if upon the facts the court was of the opinion that, under the terms of said will and testament, the plaintiff's father, Francis Nixon, Jr., or the plaintiffs, together with their deceased sisters, acquired a one-sixth undivided interest in and to said lands, then the court shall adjudge that the plaintiffs are now the owners of the one-fifth undivided interest therein; if the court be of the opinion that neither plaintiffs' father, Francis Nixon, Jr., nor the plaintiffs and their deceased sisters acquired such one-sixth interest under and by virtue of the terms of said will and testament, then the court shall adjudge that the plaintiffs are the owners of that certain undivided interest in and to said lands, acquired by inheritance from James W. Nixon, alone.
It was adjudged that the plaintiffs took nothing under the will of Francis Nixon, Sr., and that they are the owners of a one twenty-fifth undivided interest in the lands described in the complaint. The plaintiffs excepted and appealed.
Under devise to testator's daughter-in-law for life, but "in case * * * she dies" to her surviving children, ultimate takers were determined at widow's death.
When gift to survivors is preceded by estate for life or years, words of survivorship usually refer to termination of particular estate.
Ehringhaus & Hall and McMullan & Le Roy, all of Elizabeth City, for appellants.
Whedbee & Whedbee, of Hertford, Thompson & Wilson, of Elizabeth City, and Ward & Grimes and Stephen G. Bragaw, all of Washington, N. C., for appellees.
The fourteenth item of the will contains this devise:
"I also give to Cornelia Nixon the widow of Thomas Nixon the plantation whereon she now lives containing about 275 acres during her life or widowhood, but in case she marries or dies the property to go to her surviving children."
Thomas Nixon died in June, 1886; Cornelia, in March, 1899; and Francis Nixon, Jr., father of the plaintiffs, in March, 1896. The plaintiffs contend that their father, a son of Thomas and Cornelia Nixon, acquired under the will of Francis Nixon, Sr., a one-sixth undivided interest in the devised premises. and that upon his death they succeeded to his interest; the defendants say, on the other hand, and as Francis Nixon, Jr., predeceased the life tenant, he acquired no interest in the property, and the plaintiffs none as his heirs at law. The question is whether, under the provisions of the will, "her surviving children" are to be ascertained at the death of the testator or at the death of the life tenant--the rule whereby the period of vesting is to be determined being a rule of construction and not a principle of substantive law. Taylor v. Taylor, 174 N.C. 537, 94 S.E. 7.
A brief review of some of the authorities in which the question has been discussed may serve in pointing to the correct conclusion. Among the earlier cases is Cripps v. Wolcott, 56 Eng. Reports, 613, which was decided in 1819. In this case it appears that Deborah Saunder devised certain real and personal property in trust to pay to or to permit her husband to enjoy the rents and profits thereof during his natural life, and directed that upon his death a sum of money and other personal property should be equally divided between her two sons and her daughter, and the survivors or survivor of them, share and share alike. In construing this clause, the Vice Chancellor said:
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... ... the fifth item of the will, are manifestly referable to the ... death of the life tenant. Jessup v. Nixon, 193 N.C ... 640, 137 S.E. 810; Knight v. Knight, supra ... The ... remaining question is whether the survivors of ... ...
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Bolling v. Barbee
...and the principle announced in Williams v. Sasser, 191 N.C. 453, 132 S.E. 278, and that line of cases would govern this case. In Jessup v. Nixon, supra, it was held that if the devise to survivors was preceded by a particular estate for life or years, words of survivorship "in the absence o......