Langston v. Wooten

• Court: North Carolina Supreme Court
• Writing for the Court: DENNY; There seems to be some doubt on the part of the appellants as to the validity of the partition proceeding, since it took place before the plaintiff
• Citation: Langston v. Wooten, 59 S.E.2d 605, 232 N.C. 124 (N.C. 1950)
• Decision Date: 24 May 1950
• Docket Number: No. 388,388
• Parties: LANGSTON et ux. v. WOOTEN et al.

Page 605

59 S.E.2d 605

232 N.C. 124

LANGSTON et ux. v. WOOTEN et al.

No. 388

Supreme Court of North Carolina.

May 24, 1950

George B. Greene, Kinston, for plaintiffs.

Thomas J. White, Kinston, for defendants.

DENNY, Justice.

The appellants raise the following questions: (1) Is the language of the will under which the plaintiff, J. C. Langston, Jr., claims title, sufficient to devise to said plaintiff the fee simple title to a portion of testator's land? (2) If so, does the provision that the devisees shall 'have no right to sell it, except to each other' constitute a valid limitation upon the right of alienation?

The first question, when considered in light of the provisions of G.S. § 31-38, in our opinion, must be answered in the affirmative. The statute provides: 'When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity.' Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368; Elder v. Johnston, 227 N.C. 592, 42 S.E.2d 904; Williams v. McPherson, 216 N.C. 565, 5 S.E.2d 830; Henderson v. Western Carolina Power Co., 200 N.C. 443, 157 S.E. 425, 80 A.L.R. 497; Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838.

We find nothing in the testator's will to indicate an intent to limit the estate his children would take. It is true the will is inaply drawn. However, there is not only an expressed intent that his children should have the land, but that they should keep it among themselves. If he had not intended to devise the property to them, his attempt to restrain its alienation would be illogical. Moreover, he contemplated and directed a division of the farm land when his children became of age, or earlier, in the event his wife should die before the children became of age.

There seems to be some doubt on the part of the appellants as to the validity of the partition proceeding, since it took place before the plaintiff, J. C. Langston, Jr., became 21 years of age.

We are mindful of what was said in Greene v. Stadiem, 198 N.C. 445, 152 S.E. 398, with respect to the proper time for instituting partition proceedings, where the devisor fixes the time for a division. In Greene v. Stadiem, however, contingent remaindermen were involved. But no contingent interest was involved in the special proceeding referred to herein, and all parties who could possibly have been interested in the partition of the land were parties thereto, and all were sui juris except the plaintiff, J. C. Langston, Jr., who was represented by his next friend. Furthermore, J. C. Langston, Jr., became 21 years of age on 30 October, 1937, and ratified and confirmed the division of the property as made, by entering into the possession and occupancy of the 71 acre tract of land allotted to him in such proceeding. He would now be estopped from challenging the validity of the proceeding.

On the other...