Pridgen v. Tyson

• Court: North Carolina Supreme Court
• Writing for the Court: DENNY; VALENTINE
• Citation: Pridgen v. Tyson, 234 N.C. 199, 66 S.E.2d 682 (N.C. 1951)
• Decision Date: 26 September 1951
• Docket Number: No. 94,94
• Parties: PRIDGEN, v. TYSON et al.

Page 682

66 S.E.2d 682

234 N.C. 199

PRIDGEN, v. TYSON et al.

No. 94

Supreme Court of North Carolina.

Sept. 26, 1951

O. B. Moss, Spring Hope, and Claude C. Abernathy, Nashville, for defendants, appellants.

Lucas & Rand and Z. Hardy Rose, all of Wilson, for plaintiff, appellee.

DENNY, Justice.

It is conceded that the plaintiff, Thomas W. Pridgen, took only a life estate in the devised premises, under the will of Thomas M. Tyson, and that all persons claiming any interest in the estate are parties to the action. The defendants contend, however, that the male children of the testator took only a contingent interest conditioned upon their surviving Thomas W. Pridgen, the plaintiff, and that in order to ascertain the ultimate takers under the will, the roll must be called at the death of Thomas W. Pridgen, citing Wachovia Bank & Trust Co., v. Waddell, 234 N.C. 34, 65 S.E.2d 317; Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713; House v. House, 231 N.C. 218, 56 S.E.2d 695; Mercer v. Downs, 191 N.C. 203, 131 S.E. 575, and similar cases.

We do not so construe the devise to the male children of the testator and their bodily heirs. The remainder to them was not made contingent upon their surviving the life tenant as was the case in Wachovia Bank & Trust Co. v. Waddell, supra, and Mercer v. Downs, supra. Nor was it made contingent upon survival at the termination of a fixed period of time as in the case of Carter v. Kempton, supra, or upon the life tenant dying without issue as was the case in House v. House, supra.

On the contrary, the male children of Thomas M. Tyson, or their bodily heirs, prior to the execution of their respective deeds to plaintiff, were entitled to the immediate possession of the devised premises subject only to the termination of the preceding life estate. Therefore, we hold that upon the death of Thomas M. Tyson, his male children took vested remainders in the devised premises.

In the case of Chas. W. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341, 343, Barnhill, J., in speaking for the court said: 'The remainder is vested, when, throughout its continuance, the remainderman and his heirs have the right to the immediate possession whenever and however the preceding estate is determined; or, in other words, a remainder is vested if, so long as it lasts, the only obstacle to the right of immediate possession by the remainderman is the existence of the preceding estate; or, again, a remainder is vested if it is subject to no condition precedent save the determination of the preceding estate.'

It is the general rule that remainders vest at the death of the testator, unless some later time for the vesting is clearly expressed in the will, or is necessarily implied therefrom, Chas. W. Priddy & Co. v. Sanderford, supra. Weill v. Weill, 212 N.C. 764, 194 S.E. 462; Witty v....