Privett v. Jones

• Court: North Carolina Supreme Court
• Writing for the Court: WINBORNE; HIGGINS
• Citation: Privett v. Jones, 111 S.E.2d 533, 251 N.C. 386 (N.C. 1959)
• Decision Date: 16 December 1959
• Docket Number: No. 397,397
• Parties: Mrs. Minnie PRIVETT, widow, et al., Petitioners, v. Lucius JONES, J. E. Malone, guardian ad litem of Lucius Jones and the unborn children of Mildred Lucille Jones, et al., Defendants.

Page 533

111 S.E.2d 533

251 N.C. 386

Mrs. Minnie PRIVETT, widow, et al., Petitioners, v. Lucius JONES, J. E. Malone, guardian ad litem of Lucius Jones and the unborn children of Mildred Lucille Jones, et al., Defendants.

No. 397

Supreme Court of North Carolina.

Dec. 16, 1959

Yarborough, Yarborough & Paschal, Louisburg, for petitioners.

W. H. Taylor, Louisburg, for guardian ad litem Malone, appellants.

Lumpkin & Lumpkin, Louisburg, for Charles Ronald Chamblee, appellee.

Gaither M. Beam, Louisburg, for guardian ad litem, appellee.

John F. Matthews, Louisburg, for guardian ad litem, appellee.

WINBORNE, Chief Justice.

The sole question on this appeal is as to what interest, if any, does Charles Ronald Chamblee, son of Lucille Chamblee, deceased daughter of Mildred Lucille Jones, have in the land involved in this proceeding. The trial judge held, and properly so, that Charles Ronald Chamblee takes the interest which his mother Lucille Chamblee would have taken had she been living at the time of the death of her mother Mildred Lucille Jones, life tenant.

In this connection, where a will devises a life estate to a woman for life, with remainder to her children, and there are children in being at the death of the testator, such children take a vested remainder, 'subject to open and let in any that may afterwards be born before the determination of the particular estate.' Roper Lbr. Co. v. Herrington, 183 N.C. 85, 110 S.E. 656, 658, and cases cited. To like effect are: Bell v. Gillam, 200 N.C. 411, 157 S.E. 60; Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641.

The same principle applies to like provisions in deeds. See Griffin v. Springer, 244 N.C. 95, 92 S.E.2d 682; Blanchard v. Ward, 244 N.C. 142, 92 S.E.2d 776; Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922.

And the principle is recognized in these cases: Waddell v. United Cigar Stores, 195 N.C. 434, 142 S.E. 585; Wachovia Bank & Trust Co. v. Stevenson, 196 N.C. 29, 144 S.E. 370; Greene v. Stadiem, 198 N.C. 445, 152 S.E. 398; Spencer v. McCleneghan, 202 N.C. 662, 163 S.E. 753; Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365; Neill v. Bach, 231 N.C. 391, 57 S.E.2d 385.

In the present case testator devised the land involved in this proceeding to his three daughters, share and share alike, for the term of their natural lives only, with provision that upon the death of any one of them her one-third share to go to her children, if any; and bearing in mind that each of the daughters had children living at the date of the death of the testator,--such children took a vested remainder subject to open and let in any child thereafter born to either of said daughters. The daughter Mildred Lucille, whose husband is T. G. Jones, had two children so living, a...