Strickland v. Jackson, 95

• Decision Date: 20 March 1963
• Docket Number: No. 95,95
• Parties: Hannah Vester STRICKLAND and husband, Bobby Strickland, John Milton Vester and wife, Madeline Vester and Frank Lane Vester, v. H. P. JACKSON and wife, Annle S. Jackson.
• Court: North Carolina Supreme Court

Page 22

130 S.E.2d 22

259 N.C. 81

Hannah Vester STRICKLAND and husband, Bobby Strickland, John

Milton Vester and wife, Madeline Vester and Frank

Lane Vester, v. H. P. JACKSON and wife, Annle S. Jackson.

No. 95

Supreme Court of North Carolina.

March 20, 1963

Sam B. Underwood, Jr., Greenville, for plaintiffs-appellants.

James & Hite, by Kenneth G. Hite, Greenville, for defendants-appellees.

RODMAN, Justice.

The first question for decision is: What estate did the grantees named in the Tyson deed of 1905 take? Plaintiffs assert the children of M. H. Jackson and wife, Maggie, took vested remainders and upon the death of their mother, her one-fifth descended to her children, the plaintiffs. Defendants contend the estate which the children of M. H. Jackson and wife, Maggie, took was a contingent remainder vesting only in those who survived their parents.

When the rights of parties are determined by a written instrument, courts seek to determine the intent of the parties by the language they use. Where the language selected is clear and unambiguous, courts are limited to the words chosen to ascertain intent. To do otherwise would create rights and liabilities contrary to the agreement of the parties. Parks v. Venters Oil Co., 255 N.C. 498, 121 S.E.2d 850; Muncie v. Travelers Ins. Co., 253 N.C. 74, 116 S.E.2d 474; McCotter v. Barnes, 247 N.C. 480, 101 S.E.2d 330; Lewis v. Butters Lumber Co., 199 N.C. 718, 155 S.E. 726; Hinton v. Vinson, 180 N.C. 393, 104 S.E. 897.

The estates or rights which grantees take are stated in three parts of the deed: first, in the granting clause, next, in the habendum, and finally, in a paragraph imposing a lien for $700 in favor of a third party. In all three of these provisions the estate given M. H. Jackson and wife is for the term of their natural lives. These words require no interpretation.

The words used with respect to those who take in remainder vary slightly in each of the three parts of the deed. In the granting clause the remainder is given 'to the children of the said M. H. Jackson and Maggie Jackson that shall be born to their inter-marriage as shall survive them * * *.' In the habendum the language is 'to such children as shall be born of the inter-marriage of the said M. H. Jackson and wife, Maggie Jackson, and which shall survive the said M. H. Jackson and wife, Maggie Jackson.' The language in the final provision is 'to such children as shall be born of the inter-marriage of said M. H Jackson and wife, Maggie Jackson and who shall survive the said M. H. Jackson and Maggie Jackson.' It is, we think, manifest that there is no conflict in the three quoted provisions. All mean those and only those who survive their parents would take an interest in the property.

The distinction between a vested and a contingent remainder is the capacity to take upon the termination of the preceding estate. Where those who are to take in remainder cannot be determined until the happening of a stated event, the remainder is contingent. Only those who can answer the roll immediately upon the happening of the event acquire any estate in the properties granted. Wimberly v. Parrish, 253 N.C. 536, 117 S.E.2d 472; Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578; Pinnell v. Dowtin, 224 N.C. 493, 31 S.E.2d 467; Carolina Power Co. v. Haywood, 186 N.C. 313, 119 S.E. 500; Richardson v. Richardson, 152 N.C. 705, 68 S.E. 217.

Here the estate in remainder was not given to the children of M. H. Jackson and Maggie Jackson, but by clear and express language to those children and only those who survived their parents. Since Mrs. Vester did not survive her parents, there was nothing for her children, plaintiffs, to inherit. First Security Trust Co. v. Henderson, 225 N.C. 567, 35 S.E.2d 694; Rigsbee v. Rigsbee, 215 N.C. 757, 3 S.E.2d 331; Jessup v. Nixon, 193 N.C. 640, 137 S.E. 810; Fulton v. Waddell, 191 N.C. 688, 132 S.E. 669; Mercer v. Downs, 191 N.C. 203, 131 S.E. 575; Whitesides v. Cooper, 115 N.C. 570, 20 S.E. 295.

It affirmatively appears from the complaint that plaintiffs acquired no interest in the land by virtue of the deed from Tyson and wife to M. H. Jackson and others.

Plaintiffs contend if they are mistaken with respect to the estate which their mother took that the deed from Tyson to Jackson and wife conveyed an estate tail converted by statute into an estate in fee simple and they take a one-fifth interest by inheritance from their grandfather and grandmother. The deed does not purport to convey an estate of inheritance to Jackson and his wife. The estate of inheritance is given to the...