Sides v. Sides

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the facts as above).
• Citation: Sides v. Sides, 178 N.C. 554, 101 S.E. 100 (N.C. 1919)
• Decision Date: 26 November 1919
• Docket Number: 483.
• Parties: SIDES ET AL. v. SIDES ET AL.

101 S.E. 100

178 N.C. 554

SIDES ET AL. v. SIDES ET AL.

No. 483.

Supreme Court of North Carolina

November 26, 1919

Appeal from Superior Court, Iredell County; Adams, Judge.

Special proceedings for partition and sale of lands by A. A. Sides and others against C. E. Sides and others. From a judgment of the clerk of the superior court, defendants appealed to the superior court, which rendered judgment dismissing petition for partition of the "home place," and plaintiffs appeal. Decision of the court reversed, with directions.

Words "if they choose to do so," in will providing that "home place shall remain a home for all the single members of the family as long as they shall live, if they choose to do so, and then be divided between the next of kin," construed to mean that home place shall be kept as a home if single members choose, but, if not, then to be divided, and not to mean if the single members choose to remain single.

The matter was heard in the court below upon an agreed case, and the following statement of facts will sufficiently explain the controversy:

In 1881, Daniel Sides died, leaving a last will and testament. He left surviving him nine children and two children of a deceased son. One of the surviving children of Daniel Sides was a married son, J. W. Sides, and another a widowed daughter, Adeline Lewis, who had three children, N. A. Lewis Prudie Lewis, and John B. Lewis. John B. Lewis is now dead leaving three children, J. G. Lewis, H. E. Lewis, and R. B Lewis. The remaining children of Daniel Sides were unmarried at the time of his death, and one of them afterwards married.

Since the death of Daniel Sides, his married son, J. W. Sides, has died, leaving children, and Adeline Lewis has died intestate leaving two children and the children of her deceased son. Four of the remaining children of Daniel Sides have also died, never having married. The children of Daniel Sides now living are A. A. Sides, Elvina Sides, and M. S. Sides, three of the plaintiffs in this case.

Daniel Sides died seized and possessed of three tracts of land set out and described in the petition; said tracts being known and designated as follows, viz:

First, the Reuben Potts place.

Second, the river place.

Third, the home place.

There is no contention between the parties concerning the decision of the court as to the Potts place and the river place. The contention is over the home place. In the will of Daniel Sides, he provides in one item of his will as follows:

"Item. I further devise that as long as the children remain single, the place where I now reside shall be a common home for them all, but if any of them shall marry, then they, the married ones, shall look out for some other place."

The will later provides as follows:

"Item. I further devise that after the death of my wife, Esther Sides, all my lands except the home place shall be equally divided between my children living at my death, by a commission consisting of three disinterested men, and then each child's lot shall be determined by drawing for it; and the home place shall remain a home for all the single members of the family as long as they shall live, if they choose to do so, and then be divided between the next of kin."

The surviving children, A. A. Sides, Elvina Sides, and M. S. Sides, have come into court and stated that they do not longer care to maintain said home as a common home, but desire to hold their interests in said property in severalty. In this request a number of the heirs at law of Daniel Sides concur.

The clerk of the superior court ordered the home place to be sold and the proceeds divided among the next of kin of Daniel Sides at the time of his death. From this judgment the defendants appealed to the superior court, which court rendered judgment dismissing the petition for partition of the home place, containing 211 acres, holding that the same was premature, and that the plaintiffs, A. A. Sides, Elvina Sides, and M. S. Sides, had no right to give up said home place as a common home, and call for a division of the same, and plaintiffs appealed.

Dorman Thompson, of Statesville, for appellants.

R. B. McLaughlin and W. D. Turner, both of Statesville, for appellees.

WALKER, J. (after stating the facts as above).

We need consider but one question, that is, whether the plaintiffs were entitled to partition of the home place. The other questions will be presented when the land is divided or sold for partition, the report of the commissioners is confirmed, and directions are given for a distribution of the fund among those entitled to it. The court will then determine how the proceeds of the sale shall be divided in accordance with the terms of the will.

It appears that the testator desired the home place to be kept for the single members of his family as long as they desired to live together. He therefore directed that, if any should marry, at once a new home should be found. He realized, however, that the time might come when the single members of the family would no longer care to keep the old home in common with each other, and he at once set about to provide for such a contingency. He says in an item of the will:

"And the home place shall remain a home for all the single members of the family as long as they shall live, if they choose to do so, and then be divided between the next of kin."

It is manifest that the words, "if they choose to do so," must mean that it...