Springs v. Hopkins

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the facts as above).
• Citation: Springs v. Hopkins, 171 N.C. 486, 88 S.E. 774 (N.C. 1916)
• Decision Date: 10 May 1916
• Docket Number: 449.
• Parties: SPRINGS ET UX. v. HOPKINS.

88 S.E. 774

171 N.C. 486

SPRINGS ET UX. v. HOPKINS.

No. 449.

Supreme Court of North Carolina

May 10, 1916

Allen J., dissenting.

Appeal from Superior Court, Mecklenburg County; Carter, Judge.

Action by R. C. Springs and wife, Lillian Smith Springs, against H L. Hopkins. From a judgment for plaintiffs, defendant appeals. Reversed.

Where trust which had been active became passive, the trustee no longer being required to pay the income over to the beneficiary, the statute of uses operates to divest the trustee of title.

The case was submitted to the court below upon the pleadings and exhibits for its opinion and judgment as to whether the plaintiffs were seised in fee simple absolute of a one-third undivided interest in the lands in question, which undivided interest the plaintiff contracted, for the sum of $5,000, to sell and convey to the defendant, vesting in him a good and sufficient indefeasible title for said estate therein, with the usual covenants of warranty. A proper deed has been tendered to the defendant, and the plaintiffs have otherwise complied with the contract, on his part, provided their title is good, and this must be determined by a construction of the deed fully set out in the case, as follows:

"This deed, made this 6th day of April, 1880, by and between Nancy S. Smith, widow of the late B. R. Smith, of the county of Mecklenburg, and state of North Carolina, of the first part, Carrie E. Smith, wife of W. Mc. Smith, the said William Mc. Smith, and W. H. Bailey of the same county and state, of the second part, and Lillian A. Smith and W. Bernard Smith, children of the said W. Mc. Smith and Carrie E. Smith, and Anna B. Lee and B Rush Lee, children of Junius M. and Elizabeth Jane Lee, and Elizabeth Jane Lee of the third part, witnesseth: That the party of the first part, in consideration of the natural love and affection she has towards the parties of the second part and third part, and the sum of one dollar by the said parties of the second part in hand paid (the receipt of which is hereby acknowledged), has given, granted, bargained, and sold, and by these presents does give, grant, bargain, sell, and convey, unto the said Carrie E. Smith, for and during the life of her husband, the said W. Mc. Smith, and in the event she survives him so long as she shall remain his widow, that portion of the tract of land hereinafter described, which lies westerly of the track of the Charlotte, Columbia & Augusta Railroad, the whole tract being situated in said county on the waters of Sugar creek, adjoining the lands of Martin Icehouer, John Griffith, and others, and bounded as follows, to wit: [Here follows the description of the lands by metes and bounds containing 430 acres, more or less.] And after the death or second marriage of the said Carrie E. Smith (outliving her said husband) to the said Lillian A. and W. Bernard Smith and their heirs, with limitations hereinafter expressed, if that event shall happen in the lifetime of the said W. Mc. Smith, to him, the said W. Mc. Smith, in special trust, and for the only use, support, benefit, and behalf of the said Lillian A. Smith and W. Bernard Smith and such other children as shall have then been born to the said W. Mc. Smith by the said Carrie or any future wife, until the youngest child shall arrive at the age of twenty-one years, and upon the arrival of the youngest child aforesaid at twenty-one years of age, then to the use of the said Lillian A. Smith, W. Bernard Smith, and any other child or children that may be born to the said W. Mc. Smith by the said Carrie E. Smith or any future wife, and their heirs, forever, and in the event of the death of any of said children without issue his or her share shall vest in the survivor or survivors and their heirs, and in the event of the death of all of said children without issue in the lifetime of said W. Mc. Smith then to W. H. Bailey and his heirs, in trust to receive and pay the profits thereof on the first day of January and August in each and every year to the said W. Mc. Smith for the support of him, the said W. Mc. Smith (being the son of the party of the first part), to an amount not exceeding the sum of five hundred dollars annually, the said trust being intended to be created under and pursuant to the eleventh section of chapter 42 of Battle's Revisal, for and during the natural life of the said W. Mc. Smith, and after the death of all of the children of the said W. Mc. Smith as aforesaid without issue, and the death of the said W. Mc. Smith, to the said Anna B. Lee and B. Rush Lee, and their heirs, and in the event of the death of either of the last named without issue to the survivor and his or her heirs as the case may be, and if both should die without issue after the vesting of the estate in them upon the contingencies as above contemplated, then to the said W. H. Bailey and his heirs, in trust for the sole and separate use of the said Elizabeth Jane Lee and her heirs, free from the control and without being in any way subject to the debts of her husband Junius M. Lee: Provided, that the said Elizabeth Jane Lee shall not have the power to sell her said estate or the profits arising therefrom by anticipation or otherwise. And provided, also, and it is hereby agreed and declared, that it shall and may be lawful to and for the party of the first part at any time during her natural life, by any writing under her hand and seal, attested by two or more credible witnesses, or by her last will and testament in writing so attested as aforesaid, to alter, change, revoke, annul, and make void the uses hereinbefore limited to the children of the said W. Mc. Smith, limited to vest after the death or second marriage of the said Carrie E. Smith, and to limit, appoint, and declare such use to take effect only from and after the death of the said W. Mc. Smith, and that for the interval between the death of the said Carrie E. Smith and the said W. Mc. Smith she may limit the estate to the said W. H. Bailey and his heirs, to hold in trust as to the profits for the said W. Mc. Smith in like manner and with like force and effect, and subject to the same restrictions as hereinbefore contingently provided for upon the death of all of the children of the said W. Mc. Smith without issue in his lifetime. And provided, also, and it is further hereby agreed and declared, that it shall and may be lawful for the party of the first part in manner and form aforesaid to alter, change, revoke, annul, and make void the uses and estates hereinbefore contingently limited, appointed, and declared to the said Elizabeth Jane Lee, Anna B. Lee, and B. Rush Lee, or any or either of them, and any other use in lieu and stead of such of these as she may revoke to limit, appoint, and declare as to her, the said party of the first part, shall seem meet, does hereby authorize and empower the said Carrie E. Smith to sell or mortgage the said realty in fee simple as both a power attached and appurtenant to her estate, as well as by virtue of a power from the party of the first part as her attorney in fact under the power of revocation and new appointment herein inserted.

In witness whereof, the parties of this deed have hereunto set their hands and seals the date above written.

[Seal.] Nancy S. Smith.

[Seal.] Carrie E. Smith.

[Seal.] W. M. Smith.

[Seal.] W. H. Bailey.

[Seal.] Elizabeth Jane Lee.

[Seal.] Anna B. Lee.

[Seal.] B. Rush his X mark Lee."

In regular proceedings between the parties, the lands conveyed by the above deed were sold and the proceeds reinvested in the lands, which are the same described in the contract between the parties to this action, and the title of the grantors of said lands is admitted to be good. It is further admitted that Carrie E. Smith, wife of W. Mc. Smith, died April 18, 1912, 2 weeks before the death of her husband, he not having remarried. They had four children, W. Bernard Smith, Lillian Smith, who intermarried with R. C. Springs (plaintiffs in this action), Julia E. Smith, and Junius M. Smith. At the date of the original deed from Mrs. Nancy S. Smith to B. R. Smith and others, Lillian Smith (now Springs) was 3 years old, and Julia E. Smith and Junius M. Smith were not then born; but the three children of W. Mc. Smith and Carrie E. Smith, Lillian, Julia E., and Junius M. Smith, have each for some time been over 21 years of age. The other child, W. Bernard Smith, died in infancy, during the lives of his parents, being without issue, as he was only 6 years old at the time of his death. Anna B. Lee died unmarried and without issue, leaving surviving her mother, Mrs. Elizabeth Jane Lee, a widow, and her brother B. Rush Lee, who intermarried with Ella Wriston, and Mrs. Lee and B. Rush Lee and wife have conveyed their interests in said land to the plaintiffs. Mrs. Lee had only two children, Anna B. Lee and B. Rush Lee. Nancy S. Smith has been dead for many years.

The contention of the plaintiffs is that the interests of the three surviving children of W. Mc. and Carrie E. Smith, viz Lillian S. Springs, Julia E. Smith, and Junius M. Smith, vested absolutely in them when Junius, the youngest of them, arrived at full age, or when their father died in 1912, some time before this suit was brought; while the defendant contends that the legal effect of the limitations and restrictions in the deeds is to confine the estate of the plaintiffs to a defeasible fee, or one subject to be divested by the death of the plaintiff Lillian S. Springs without issue, and that the estate of the said plaintiff and the other tenants in common is dependent upon the principle of survivorship inter se, and further that the contingent estates following that of the plaintiff and her cotenants are "good, valid, outstanding, and...