Wooten v. Hobbs

• Decision Date: 10 November 1915
• Docket Number: 194.
• Citation: Wooten v. Hobbs, 170 N.C. 211, 86 S.E. 811 (N.C. 1915)
• Parties: WOOTEN v. HOBBS ET AL.
• Court: North Carolina Supreme Court

86 S.E. 811

170 N.C. 211

WOOTEN v. HOBBS ET AL.

No. 194.

Supreme Court of North Carolina

November 10, 1915

Appeal from Superior Court, Greene County; Bond, Judge.

Controversy without action, under Revisal 1905, § 803, between James I Wooten, trustee of Cecil C. Wooten, and E. H. Hobbs and others, to determine title to land. From the findings of the court for defendants, plaintiff appeals. Affirmed.

Where a legacy is given to persons in being by name, and one dies before the testator, those living do not take his share as survivors; but the legacy lapses, and passes to the testator's next of kin, in the absence of contrary provisions in the will.

Simeon Wooten died in Lenoir county, leaving a last will and testament, duly admitted to probate, and in the tenth item thereof he devised his land in Greene county as follows:

"I loan to my six children, Leonard E. Wooten, Helen R. Hobbs Mary V. Peele and John S. Wooten, Cecil C. Wooten and Lester D. Wooten, for and during their natural lives with the right to enjoy the same and to receive the rents and profits regularly accruing therefrom, my lands situate in the county of Greene, state of North Carolina, known as the William I. Wooten place, containing about five hundred acres, and the Rachel Moye tract lying near the same containing about one hundred and sixty acres. It is my desire and I direct that if my said children shall desire to hold during their lives their respective shares in said lands in severalty, that they shall have the right to do so by partition of the same. If one or more of my said children shall die without leaving child or children, him or her surviving, or issue of such child or children surviving, then in that event I loan and direct that the share or shares of him or her or them dying without child or children or issue of such child or children, shall go to and remain in the possession during their lives of my surviving child or children to be holden by them during their lives in the same manner as the original shares therein under this my will. At the death of such of my children, one or more, as shall die leaving child or children surviving or issue of such child or children surviving, I give and devise said lands, including the original shares loaned by this my will and also any and all addition thereto by survivorship, to his or her child or children so surviving, to have and to hold to them, the said surviving child or children, the respective share or shares of their several parents, and their heirs, in fee simple forever."

By the first item of a codicil to his will he revoked this devise as to his son, Cecil C. Wooten, in the following terms:

"It is my will that my son, Cecil C. Wooten, shall have no interest in my Greene county lands, known as the William I. Wooten place, containing about five hundred acres, and the Rachel Moye place, containing about one hundred and sixty acres, and I do hereby expressly withdraw and recall from my said son, Cecil C. Wooten, the entire interest which I devised to him in said Greene County lands in item tenth of my said will; in accordance with my desire I loan the said interest intended for my said son, Cecil C. Wooten, in said item to my other five children, Leonard E. Wooten, Helen R. Hobbs, Mary V. Peele, John S.

Wooten and Lester D. Wooten, for and during their natural lives subject to the same and identical rights, privileges and provisions as to survivorship and limitations over as are specifically prescribed and set forth in said tenth item."

Since the death of Simeon Wooten, his son Leonard E. Wooten has died intestate and without children, having never been married. James I. Wooten, trustee of Cecil C. Wooten, the plaintiff in this action, contends that his cestui que trust takes an equal interest with his brothers and sisters above named in that part of the two tracts of 500 acres and 160 acres devised by the tenth item of the will to Leonard E. Wooten, now deceased, upon the ground that the codicil does not deprive him of any interest in said land originally devised to his brothers and sisters, or either of them, but only revokes the devise of said land originally made to him; while defendants contend that the codicil not only revokes the devise of an interest in the land originally made to Cecil C. Wooten, but its legal effect is to deprive him of any and every interest whatsoever, either vested or contingent, in the land described in item 10 of the will, and therefore he acquired no interest therein by the death of Leonard E. Wooten, and that no interest, either original or accrued, passed to Cecil C. Wooten, because of the said codicil. The case states:

"The purpose of this controversy without action is to ascertain the interest, if any, of the said Cecil C. Wooten in the two tracts of land mentioned in the tenth item of the will of the said Simeon Wooten, which two tracts of land are situated in Greene county, and are those mentioned in item first of the codicil of the said Simeon Wooten, and the purpose of this controversy is limited to said inquiry."

The judge ruled that the children of the testator, Helen R Hobbs, Mary V. Peele, John S. Wooten, and Lester D. Wooten, share equally in the portion of the land devised to Leonard E. Wooten under the tenth item of the will and the first item of the codicil thereto, said land being the William I. Wooten place, containing 500 acres, and the Rachel Moye place, containing 160 acres, and that James S. Wooten, as trustee of Cecil C. Wooten, has no interest of any kind, either vested or contingent, upon survivorship, in the land mentioned in the tenth item of the will and the first item of the codicil, the same being the land known as the William I. Wooten tract of 500 acres and the Rachel Moye tract of 160 acres, and judgment was rendered...