Springs v. Scott

• Decision Date: 05 May 1903
• Citation: 44 S.E. 116,132 N.C. 548
• Parties: SPRINGS et al. v. SCOTT et al.
• Court: North Carolina Supreme Court

44 S.E. 116

132 N.C. 548

SPRINGS et al. v. SCOTT et al.

Supreme Court of North Carolina

May 5, 1903

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

Proceeding by E. B. Springs and others against J. M. Scott and others to obtain an order for the sale of real estate. From a judgment of the circuit court affirming a judgment of the clerk directing the sale of land, defendants appeal. Modified and affirmed.

A gift of real estate to a son, conditioned that he should only receive the interest during his life, which at his death should be paid to his children until they became of age, and if no children or heirs of his body, to be equally divided among his brothers and sisters or their heirs, created an executory devise, in the event of the death of the son without issue, to his brothers and sisters in fee.

Burwell & Cansler, for appellants.

Jones & Tillett, for appellees.

CONNOR J.

This is a special proceeding instituted in the superior court of Mecklenburg county for the purpose of obtaining an order for the sale of the land described in the petition for partition. The plaintiff and the feme defendant are the children and devisees of Julia Springs, deceased; the plaintiff E. B Springs appearing in his own behalf and as trustee of Alva C Springs. The petitioners aver that they, together with the feme defendant, are seised as tenants in common of a lot in the city of Charlotte, under the provisions of item 5 of the will of their mother, the late Julia B. Springs, which is in the following language: "I give and bequeath unto my son Alva C. Springs one hundred dollars. I also wish his expenses paid here and back to his home when I die. I also give him equal with the rest of the children, but he can only receive the interest during his life; at his death the interest will be paid to his children until they are of age, and if no children or heirs of his body, it must be equally divided among his brothers and sisters or their heirs. I appoint Eli Springs his trustee." Alva C. Springs has no children and the said parties desire to have partition of the land; that it is for the best interest of all concerned that the partition be made, and, owing to the number of shares and the character of the property, actual partition cannot be made, and it is necessary to have a sale for partition. The defendants demur to the petition, and for cause of demurrer say: (1) That it appearing from the plaintiff's complaint, and particularly from the will of said Julia B. Springs, that the interest therein devised to Alva C. Springs is for his life only, and that after the death of Alva C. Springs there is a limitation over to his children until they are of age, and, if no children or heirs of his body, to his brothers and sisters or their heirs, it cannot now be known who the heirs are who will be entitled to take upon the death of said Alva C. Springs. (2) That the heirs of said Alva C.

Springs are not made parties to this action, and that the said heirs are necessary parties. (3) That this court has no jurisdiction to order a sale of the land described in the complaint." The court overruled the demurrer, and directed a sale of the land. The defendants appealed to the judge, who affirmed the judgment of the clerk, and directed that the cause be retained for further hearing upon the coming in of the report. From this judgment the defendants appealed to this court.

The only question is whether, in the absence of any child of the said Alva to represent those next in remainder after his death, the court has the power to order the sale of the land. This would, under the decisions of this court, present a very serious, if not insurmountable, difficulty, but for the presence of the trustee to represent and preserve the interest of such children as may be born to the said Alva C. Springs. To the suggestion that this proceeding, invoking the equitable powers of the court, should have been instituted in the superior court in term, in which we concur, it is sufficient to say that the case, now being in the superior court by appeal, will be retained, and all necessary amendments will be deemed to have been made, or, if necessary, be made in this court. Elliott v. Tyson, 117 N.C. 116, 23 S.E. 102, in which the authorities are collected. The power of the court to order the sale of real estate limited by deed or will to persons not in esse or upon contingent remainders has been so often before this court that it would seem there could be no doubt as to the law in this state. It is manifest that in the opinion of the profession the question is not regarded as at rest. The eminent counsel who argued this case so informed us. There is a large quantity of real estate in this state, especially in the towns and cities, the title to which is in such a condition, by reason of contingent limitations, that it can neither be sold nor improved, thereby being a burden on those who own the life estate, bringing no income, and entailing a heavy expense to them by way of taxes and assessments for paving and other public improvements. We are told by counsel that the decisions of this court are not in accord with those of other jurisdictions in regard to the power of the court to order the sale of property the title to which is thus fettered by limitations. Our attention was called in the argument and brief of counsel to an act of the General Assembly passed at its last session, Laws 1903, c. 99, and the plaintiffs insist that, as this proceeding was instituted since the ratification of the act, the court, if it should be of the opinion that under the law as it existed prior thereto the plaintiffs are not entitled to relief, will find in the act the power to give the relief demanded. In Watson v. Watson, 56 N.C. 400, this court held that "a court of equity has no power to order the sale of land, for the purpose of converting it into a more beneficial property, when it is limited in remainder to persons not in esse." The doctrine of this case was very materially modified by the court in Ex parte Dodd, 62 N.C. 97, in which the same will was before the court. That was a petition for the sale of land. The devise was to "Orren L. Dodd during his life, and at his death in fee simple to his child or children, if he has any living at his death, or the issue of any of the said Orren who may predecease him; failing such issue, however, the whole shall belong to and be equally divided amongst the children of his brother Dr. Warren Dodd." The petitioners, beside Orren, were his children, who were under age and represented by guardian. Dr. Warren Dodd had no children, and was never married. Battle, J., says: "It is certain that if the land be devised to a person for life, with an executory devise in fee to his children, the court cannot order a sale of the land before the birth of any child, because, not being in esse, there can be no one before the court to represent its interests. Such was the case in Watson v. Watson. But, if there be any children in esse in whom the estate in fee can vest, a sale may be ordered, because, if their interests require it, they may be represented by their guardians, and this may be done although all of the children of the class may not yet have been born. Such is the case now before us, with the exception that there is an executory devise, to the unborn children of another person, depending upon the event of the tenant for life dying without leaving issue. Can this latter circumstance make any difference? We think not, because the first class of children are the primary objects of the devisor's bounty, and as they have vested remainders in fee, and as their interests, as well as that of the tenant for life, will be promoted by having their land sold and the proceeds invested in other lands or in stocks or other securities for their use, the court of equity is authorized, under the general power conferred by the act of 1827 [Laws 1827, p. 27, c. 33], to which we have referred, to order the sale." It would seem that this language, which we have quoted at length because of its importance in the settlement of this question, can have no other meaning or construction than that, if the class first in remainder is represented, the court will take jurisdiction, although there "is an executory devise to the unborn children of another person." This, as we shall see, is in accordance with the authorities, both English and American.

In Williams v. Hassell, 74 N.C. 434, Reade, J., in discussing the power of the court in such cases, cites Watson v. Watson, supra. He makes no reference to Ex parte Dodd supra. He notices the dictum in Watson v. Watson, and then draws a distinction between a case in which the remainder is to all the children of the life tenant, and one in which the remainder is to such children of his or her as may be living at his or her death, in which case, as it cannot be known who will be in the class when the life estate falls in, there can be no one to represent the class. Ex parte Miller, 90 N.C. 625; Young v. Young, 97 N.C. 132, 2 S.E. 78; Whitesides v. Cooper, 115 N.C. 570, 20 S.E. 295. It will be observed that the petition in that case was for a sale, there being no suggestion of a reinvestment of the proceeds to preserve the limitations. In Ex parte Dodd the fund was ordered to be reinvested. The doctrine of representation is recognized in Branch v. Griffin, 99 N.C. 183, 5 S.E. 393, 398; Overman v. Sims, 96 N.C. 451, 2 S.E. 372. In Aydlett v. Pendleton, 111 N.C. 28, 16 S.E. 8, 32 Am. St. Rep. 776, the decision was based upon the ground that some of the parties interested objected to the sale. Shepherd, J., says: "Thus it will be seen that even according to this construction of a deed there are future contingent interests, and, though...