Middleton v. Rigsbee

• Citation: 102 S.E. 780,179 N.C. 437
• Decision Date: 14 April 1920
• Docket Number: 330.
• Parties: MIDDLETON ET AL. v. RIGSBEE ET AL.
• Court: United States State Supreme Court of North Carolina

102 S.E. 780

179 N.C. 437

MIDDLETON ET AL. v. RIGSBEE ET AL.

No. 330.

Supreme Court of North Carolina

April 14, 1920

Appeal from Superior Court, Durham County; Stacy, Judge.

Action by Mary E. Middleton and E. L. Middleton, her husband against R. H. Rigsbee, as trustee and individually, and others. From judgment for plaintiffs on demurrer to the complaint, defendants appeal. Affirmed.

Despite provision of will that principal of trust fund should not be used or diminished during 30 years, except to pay insurance premiums, devisee of life estate in city lots, improved and unimproved, with dilapidated buildings on some, under order to install sewerage, but without means to do so, held entitled to compel trustee to sell single lot in consideration of cash and improvements on rest of property in order to procure money to pay for other improvements.

Bryant Brogden & Bryant, of Durham, for appellants.

J. L Morehead, of Durham, for appellees.

HOKE J.

On matters more directly relevant to the inquiry, the complaint alleges: That under the will of her deceased father, Atlas M Rigsbee, the feme plaintiff is the owner of a life estate in quite a number of lots in the city of Durham, improved and unimproved, with remainder to her children who may be living at the time of her death, with ulterior limitations over to trustees on certain contingencies set forth in said will. That the present living children of feme plaintiff and all other ultimate takers who are known have been made parties defendant, and all who are infants or cannot now be ascertained are represented by a guardian ad litem appointed by the court after due inquiry as the statute provides. Rev. § 1590. That the houses on the improved lots let for a small weekly rental aggregating not over $70 per month and are at present in a rundown condition, greatly in need of repairs, new roofs, painting, etc., in order to keep them in a condition to make them attractive. Furthermore, the city of Durham, has ordered plaintiff to install sewerage in many of the houses and advised plaintiff that unless this is done the permits for the use of dry closets would be withdrawn, etc., all of which would result in large expenditures of money or in the loss of renters now occupying said houses, etc. That several of the vacant lots so devised to plaintiff, etc., are now low, seamed with gullies and washouts, and of such grade formation as to be unfit for building in their present shape and condition and practically of no value unless certain culverts and pipes are installed thereon and the lots improved and leveled up to a proper grade with the streets and surrounding property. That plaintiff has made an advantageous bargain with one R. J. Aiken to sell one of the lots 60X165 feet for $4,000, with the further consideration that said Aiken will remove a house now on said lot and place same in proper condition on one of the vacant lots owned by plaintiff for life and further level up the gullies and washouts on the other vacant lots referred to, etc.

The complaint contains averment further that plaintiffs are not able financially to make the repairs which are now called for and necessary to the preservation and proper use and enjoyment of the property, nor to meet the demands being now made by the city of Durham, nor are her children able to do so, and that the best interests of the estate and all of the parties will be materially enhanced by the sale of the 65-foot lot referred to and by using the consideration in the improvement of the property as indicated and by which its value and the present and future income will be greatly increased.

Upon these averments admitted in the demurrer to be true, we concur in the view of his honor and are of opinion that the demurrer has been properly overruled.

As appertaining to the facts of this record, the decided cases on the subject hold that courts in the exercise of general equitable jurisdiction may decree a sale of property for reinvestment, where it is shown that such a course is required for the preservation of the estate and the protection of its owners; and the position may in proper instances be extended to a sale of a portion of the property for the protection and preservation of the remainder.

The principle adverted to has been not infrequently applied in the proper administration of charitable and other trusts, and the exercise of the power has...