Moseley v. Knott

• Court: North Carolina Supreme Court
• Writing for the Court: DEVIN, Justice.
• Citation: Moseley v. Knott, 194 S.E. 100, 212 N.C. 651 (N.C. 1937)
• Decision Date: 15 December 1937
• Docket Number: 401.
• Parties: MOSELEY v. KNOTT et al.

194 S.E. 100

212 N.C. 651

MOSELEY v. KNOTT et al.

No. 401.

Supreme Court of North Carolina

December 15, 1937

Appeal from Superior Court, Lenoir County; E. H. Cranmer, Judge.

Proceeding between Laurie Moseley, Jr., and W. A. Knott and another to determine the title to certain land, the subject of a contract of sale by plaintiff to defendant. Judgment that plaintiff was the owner of the land in fee, and defendants appeal.

Affirmed.

This was a controversy without action submitted upon agreed statement of facts to determine the title to certain described land, the subject of contract of sale by plaintiff to defendants.

From judgment that plaintiff was owner of the land in fee and that his deed therefor to defendants would convey a good title defendants appealed.

When a remainder is limited to a class, the class is to be ascertained at the termination of the life estate.

R. A Whitaker, of Kinston, for appellants.

Wallace & White, of Kinston, for appellee.

DEVIN Justice.

The determination of the question presented by this appeal involves the construction of the ninth item of the will of E T. Moseley from whom it is admitted the title descended. This item is expressed in the following language: "I give and devise to my beloved daughter-in-law, Kate Vanstory Moseley, wife of my beloved son, Laury Moseley, for and during the term of her natural life, a certain tract or parcel of land (describing it), to have and to hold to her, the said Kate Vanstory Moseley, for and during the term of her natural life, and at her death to go to the heirs of my beloved son, Laury Moseley, share and share alike. It being my desire and wish however that my beloved son, Laury Moseley, shall have charge of this farm, or tracts of land, and the management thereof, during the life estate created herein."

It was admitted that one child only was born to Kate Vanstory Moseley and Laury Moseley, the plaintiff Laurie Moseley, Jr., and that he was living at the time of the execution of the will of E. T. Moseley, his grandfather, in 1925. In 1927 Kate Vanstory Moseley died leaving surviving her husband, Laury Moseley, Sr., and the plaintiff Laurie Moseley, Jr., the only child of Laury Moseley, Sr., and herself. Since the death of Kate Vanstory Moseley, Laury Moseley, Sr., has married again, but no other child has been born to him.

Section 1739 of the Consolidated Statutes contains the following rule of construction: "A limitation by deed, will, or other writing, to the heirs of a living person, shall be construed to be to the children of such person, unless a contrary intention appear by the deed or will."

Interpreting the ninth item of the will in accord with the rule set forth in this statute, the devise, to take effect at the termination of the life estate of Kate Vanstory Moseley, "to the heirs" of Laury Moseley (who was then and still is living), must be construed to mean his children. This brings us to the consideration of the question whether those who take under the will in remainder as child or children of Laury Moseley, Sr., are to be determined at the death of Kate Vanstory Moseley, or whether this class would be enlarged to include any children who might hereafter be born to Laury Moseley, Sr., by a subsequent marriage.

The uniform holding of the court upon these and similar facts is that when the life estate terminates, the person or persons who answer the description take the property. So that at the death of Kate Vanstory Moseley, immediately the law called the roll of the class, that is the children of Laury Moseley Sr., and the only one who could answer was the plaintiff, and he alone was entitled to take. Bell v. Gillam, 200 N.C. 411, 157 S.E. 60; Wachovia Bank & Trust Co. v. Stevenson, 196 N.C. 29, 144 S.E. 370; Fulton v. Waddell, 191 N.C. 688, 132 S.E. 669; Baugham v. Trust Co., 181 N.C. 406, 107 S.E. 431; Cooley v. Lee, 170 N.C. 18, 86 S.E. 720; ...