Wimberly v. Parrish, 461

• Decision Date: 14 December 1960
• Docket Number: No. 461,461
• Citation: 117 S.E.2d 472,253 N.C. 536
• Court: North Carolina Supreme Court
• Parties: Della Bullock WIMBERLY et al. and such others of the Heirs at Law of the Late J. M. Builock, Deceased, who may desire to come and make themselves parties Plaintiff herein v. Charles V. PARRISH, Percy J. Parrish, Cariie F. Parrish, William Parrish, Woodrow Parrish, Ruby P. Hedrick and Alice P. Raynor, Heirs at Law of James Mayion Parrish, Deceased.

Page 472

117 S.E.2d 472

253 N.C. 536

Della Bullock WIMBERLY et al. and such others of the Heirs at Law of the Late J. M. Builock, Deceased, who may desire to come and make themselves parties Plaintiff herein v. Charles V. PARRISH, Percy J. Parrish, Cariie F. Parrish William Parrish, Woodrow Parrish, Ruby P. Hedrick and Alice P. Raynor, Heirs at Law of James Mayion Parrish, Deceased.

No. 461

Supreme Court of North Carolina.

Dec. 14, 1960

Dupree & Strickland, by Franklin T. Dupree, Angier, Dupree, Weaver, Horton & Cockman, by F. T. Dupree, Jr., Raleigh, for plaintiffs, appellants.

William B. Oliver, Fuquay Springs, Thomas A. Banks, for defendants, appellees.

HIGGINS, Justice.

When, at the close of the evidence, the court intimated it would give the jury peremptory instructions to find for the defendants, the plaintiffs then had the option of waiting for the instructions, excepting to them and to the judgment and then appeal. Or, they could submit to a nonsuit and appeal. They chose the latter course. The procedure followed is amply supported by our decisions. Justice Denny, in Rochlin v. P. S. West Construction Co., 234 N.C. 443, 67 S.E.2d 464, 465, states the rule: 'And where a judge intimates an opinion on the law which lies at the foundation of the action, adverse to the plaintiff, or excludes evidence offered by the plaintiff which is material and necessary to make out his case, he may submit to a nonsuit and appeal.' (Citing many cases.)

In view of our decision in the case we refrain from discussing the evidence, except to say it was conflicting and sufficient to present a jury question whether James Maylon Parrish, after the testator's death in 1945, met the conditions, the fulfillment of which qualified him to take under the will. The date of the will and other evidence indicate both the testator and the widow, at the former's death in 1945, had reached somewhat advanced age. They were childless, though at the time the will was executed James Maylon Parrish had been taken into the home.

From an examination of the will, it is obvious the testator's primary purpose was to provide for his wife. At the beginning of the dispositive item of the will, he said: 'I give and devise to my beloved wife L. E. Bullock all that tract of land * * * also all * * * other property that I may possess, at my death all of the above property I give to her for her natural life only and at her death all the above property I give to James Maylon Parrish * * * provided the said James Maylon Parrish shall stay with my wife and take care of her at my death other wise my property shall decent to my next of Kin.'

We think it was the intent of the testator that James Maylon Parrish, in no event, should take or receive any interest prior to the termination of Mrs. Bullock's life estate, and then only provided he had stayed with and taken care of her until the time of her death. In the event of his failure to fulfill the condition, the estate should go to his next of kin. Hence, the final taker could be determined only at the end of the life estate. This being so, the will does not give a vested remainder to James Maylon Parrish. 'So long as there is an uncertainty as to the person or persons who will be entitled to enjoy a remainder it is contingent.' Carolina Power Co. v. Haywood, 186 N.C. 313, 119 S.E. 500, 503. This construction is supported by the provision following. The primary and controlling purpose as gathered from the will was the intent of the testator to see to it that his widow, so long as she lived, had proper care and attention. The evidence is undisputed the widow's physical and mental condition in her declining years was such as to require someone to stay with and care for her. The evidence was sharply conflicting whether Parrish had performed these duties as required by the will. Compliance with its terms was a condition precedent to his taking under it. The disposition over to the next of kin distinguishes this case from those cited by the appellees. As stated by this Court in Tilley v. King, 109 N.C. 461, 13 S.E. 936, 937: 'It is...