77 S.E. 407 | N.C. | 1913
This action was brought to recover certain land and personal property by the plaintiff, Clara Beacom, against the defendant, James *291 Amos. The property in controversy was originally owned by Robert Beacom, who was the father of Hamilton Beacom, Clara Beacom, Mary J. Beacom, and Annie Beacom. Mary J. Beacom married James Amos and predeceased her father, leaving her surviving her husband and the following children: Maggie Amos, Mary Amos Myrtle Amos, Annie E. Amos, and Clara B. Amos. The husband, James Amos, after the death of Robert Beacom, married his wife's sister, Annie Beacom, who died 28 April, 1905, without issue, leaving a will in which she devised and bequeathed her entire estate, real and personal, to her husband, James Amos. Robert Beacom died in 1898, leaving a will in which he devised and bequeathed all of his property to his wife for her life, and subject to her life estate; to Hamilton Beacom he devised a tract of land containing 250 acres, upon the following condition: "To have and to hold the same unto him, the said Hamilton Beacom, and his heirs and and assigns forever: Provided, however, if the said Hamilton Beacom shall die without issue living, then and in that event I give and devise said land above described to my daughters, Clara and Annie (359) Beacom, and their heirs and assigns: Provided further, that in case the said Clara and Annie shall die without issue, then I give and devise said land to the children of James Amos and my daughter Mary J. Amos (the last now dead) who may be living at the time of the death of my son and daughters as above set forth, in fee simple, to be equally divided between them." And also subject to his wife's life estate and the devise to Hamilton Beacom, he devised and bequeathed to Clara Beacom and Annie Beacom the rest and residue of his property, "to have and to hold the same unto them and their heirs, executors, administrators, and assigns absolutely and in fee simple, share and share alike: Provided, however, if either the said Clara or Annie Beacom should die without issue, then the survivor thereof shall take, have, and hold said property absolutely and in fee simple. Referring to the said property above bequeathed and devised to my said daughters Clara and Annie Beacom, it is my will that in the event of the marriage of either of them, then the real estate and such personal property as then may be shall at once be sold by them and the proceeds thereof equally divided between them and to be held by them as above set forth." Robert Beacom had an interest in the estate of J. E. Beacom, deceased, and also in the copartnership of Beacom Brothers, the business of which concern was continued by Hamilton Beacom, as executor of John E. Beacom, after his death, until 11 May, 1900. It further appears that Mary Beacom, widow of Robert Beacom, left a will, by which she bequeathed her interest in the copartnership of Beacom Brothers to her son, Hamilton Beacom. *292 The case shows that a dispute arose between the children of Robert Beacom, who were also his devisees and legatees, as to their rights and interests in his estate, and as to the settlement of his affairs, especially the business of the firm of Beacom Brothers, and this controversy between them engendered much bitter feeling and some acrimony, when by the kind intercession and tactful efforts of their able attorney and friend, Mr. A. C. Zollicoffer, these conflicting claims and interests were harmonized and adjusted upon terms fully satisfactory to all the parties, and on that day, 11 May, 1900, in order to carry out their agreement and to finally settle all matters of disagreement between them, they executed several deeds, conveying and transferring to each other definite and (360) absolute interests in the property described by them in the said deeds, which were of the following description and character:
First. A deed from the plaintiff, Clara Beacom, to her sister, Annie Amos, reciting the terms of Robert Beacom's will and, further, the wish of the parties to convey to each other certain parts of the property devised to them, so that they might hold the same in severalty, absolutely and in fee simple, free from any claims therein of the one party against the other, the part so definitely described and conveyed. The said Clara Beacom then by deed conveyed to Annie Amos, "in fee simple and absolutely forever," certain tracts of land therein described, and certain articles of personal property, which is the property now in dispute.
Second. On the same day and at the same time, James Amos and wife, Annie, executed their deed conveying to Clara Beacom, with the same recitals and the same estate, certain land therein described. The last two deeds described the land devised by their father to Clara and Annie Amos.
Third. On the same day and at the same time, all of the interested parties, heirs, devisees, and legatees of Robert Beacom, that is, Hamilton Beacom, Clara Beacom, James Amos and wife, Annie Amos, Sallie Beacom, parties of the first part, and James, as trustee of his children (whose names are therein set forth), party of the second part, entered into a deed of settlement as to all their interests and business affairs, the said deed having the following recital: "Whereas, heretofore, during the year 1897, John E. Beacom, late of the county of Vance, died, leaving a last will and testament in which he named Hamilton Beacom as his executor; and whereas at the time of his death his estate consisted mainly of the mercantile business in the town of Henderson, N.C. conducted under the name of Beacom Brothers, and the same has not been settled, but the business has been continued until the present time by Hamilton Beacom as executor; and whereas the parties of the first part were interested in said estate as creditors and legatees and heirs at law; *293 and whereas Robert Beacom and his wife, Mary Beacom, who were also interested in said estate, are dead, leaving wills in which the (361) parties of the first part are interested as legatees and devisees; and whereas it is the desire of the parties of the first part that there shall be a full, final, and complete settlement of the estate of J. E. Beacom, Robert Beacom, and Mary Beacom among and between the parties of the first part; and whereas a full, final, and complete settlement of the said estate has been agreed on by and between the parties, and as a part of the consideration of the settlement it has been agreed that the land hereinafter described shall be conveyed to James Amos, trustee for his children, Maggie Amos, Mary Amos, Myrtle Amos, Annie E. Amos, Clara B. Amos, in fee simple; and whereas it is the desire of the parties of the first part to carry out said agreement and settlement: Now, therefore, in consideration of the premises and other divers good and valuable considerations, and the sum of $10 to them in hand paid," and so forth. The parties of the first part then conveyed to James Amos, as trustee of his children (by his wife, Mary Amos, formerly Mary Beacom, in fee simple absolute) "all their right, title, and interest" in and to the tract or parcel of land containing 250 acres, which was devised by Robert Beacom, subject to the life estate of his wife, Mary Beacom, to Hamilton Beacom, with contingent limitations over as hereinbefore stated. Mr. A. C. Zollicoffer testified, in substance, that he was the attorney for the respective parties, and helped them to adjust their difficulties and differences, and advised them in the matter. The settlement was intended to be a full and final settlement "of everything between the parties." It related to and embraced the adjustment of the estates of Robert Beacom's three deceased sons, who had successively conducted the mercantile business under the firm name of Beacom Brothers; the settlement of Robert Beacom's estate and of the estate of his widow, Mary Beacom. That Amos, in right of his two wives, was entitled to two shares in the store or business of Beacom Brothers, and Robert Beacom's estate to one share. He wrote all the deeds and the agreement and also the wills. They were written and executed at the same time, as parts of one and the same transaction, and were intended and considered as a final and complete settlement. At first, in order to make the settlement, a sale of the property was proposed, (362) but finally they decided that it should be divided in specie, as was done, Clara Beacom, the plaintiff, having the choice of the parcels and taking the farm, which was considered the more valuable. Hamilton Beacom testified that the consideration of his joinder in the deed to James Amos, as trustee of his children, was the interest of Amos' wives in the store and the sum of $500, which he paid. He had nothing to do *294 with arranging the terms of settlement as between Clara Beacom and Annie Amos. That was done between themselves. In this connection it may be stated that a deed of settlement, dated 11 May, 1900, between Clara Beacom, James Amos, and wife, Annie Amos, of the first part, and Hamilton Beacom of the second part, was in evidence. It recites their respective interests in the estate of John E. Beacom and in the business and effects of Beacom Brothers, and the unsettled condition of those estates, and further recites the desire of the parties interested to have "a full and final settlement between themselves of their respective interests, as creditors, legatees, and devisees of the estate, and under the wills of John E., Robert and Mary Beacom, and further, that a full and final settlement had been agreed upon, and then states the terms of settlement, viz.: that Hamilton Beacom is to provide for the payment of the claims of James Amos, representing his two wives, against the estate of J. E. Beacom, amounting to $1,646.15, the claim of Clara Beacom against such estate, and all other debts of the same, and in consideration of his having complied with the agreement on his part, they convey to him all their interest in the estate of J. E. Beacom and in the mercantile business of Beacom Brothers, including their interest in the assets and property and in the good-will of the firm of Beacom Brothers, and their interest in the estate of Mary Beacom, and any claim or share Robert Beacom may have had in the estate of J. E. Beacom or in the firm of Beacom Brothers, with habendum to him, the said Hamilton Beacom, his heirs, executors, administrators and assigns forever." This deed was a part of the general settlement.
(363) It was admitted that plaintiff could not recover, as to the personalty, as she was barred by the statute of limitations, and the only property in dispute therefore, is the two lots in Henderson, N.C. which are particularly described in the deed of Clara Beacom to Annie Amos, dated 11 May, 1900.
The court charged the jury that the legal effect of the deed from the plaintiff to Mrs. Annie Amos was to pass the title in fee, and then told the jury, if they believed the evidence, their answers to the issues should be in favor of the defendant. The jury returned the following verdict:
1. Is the plaintiff owner and entitled to the possession of the land described in the complaint? Answer: No.
2. Is plaintiff owner and entitled to the personal property described in the complaint? Answer: No.
3. What is the annual rental value of said lands? Answer: $250.
Judgment was entered thereon for the defendant, and the plaintiff appealed. *295
After stating the case: The contention of the plaintiff is that the two deeds exchanged between her and her sister, Annie Amos, operated only as a partition of the lands therein described between them, and only ascertained the several shares or portions of each of them as tenants in common of the estate devised to them by their father, and therefore, that each one of them took, not an absolute estate in fee in the part thus allotted to her by the deed from her sister, but a contingent remainder or executory devise, and consequently that each still held the estate in her several share, under the contingent limitation of the will, and it was subject to be divested or determined if she failed to survive her sister. In other words, that the estate of each in her several share was the same as was devised by the will, and not any new estate created by the deed of her sister. It may be conceded, for the sake of argument, that ordinarily a voluntary partition between tenants in common, or one accompanied by deeds, has, in law, only the effect of an assignment to each of the tenants of his several share or part of the common property, merely ascertaining and fixing the physical boundaries (364) thereof, and that no new estate is created or manufactured which was the view taken of such a partition in Harrison v. Ray,
This Court, in Gudger v. White,
If these several instruments are viewed in the light of this settled rule, we cannot escape the conclusion that the parties intended to convey to each other, not merely the contingent interest they acquired by their father's will, but the entire, unconditional and absolute estate therein. This being so, the next question is, Could they, by deed, convey this contingent interest? The limitations under the will to the sisters were executory, that is contingent remainders, or, more precisely speaking, cross-remainders. A bare possibility cannot be transferred at law, but by a possibility we mean the interest, or chance of succession which an heir apparent has in his ancestor's estate, the expectancy which one who is next of kin has of coming in for a part of his living kinsman's estate, which a relative may have of having a legacy left to him; and, perhaps, there are other examples. They are uncertain interests and are the true technical possibilities of the common law. 2 Peere Wil., 181; Whitfieldv. Faucet, 1 Ves., 381; Atherly on Man. Settl., 57. But executory devises and contingent remainders are not considered as mere possibilities, but as certain interests and estate. Gurnel v. Wood, Willis, 211; Jonesv. Doe, 3 T. R., 93. Judge Daniel, speaking of these interests (367) and the cases cited above, says in Fortescue v. Satterthwaite,
But the very question involved in this case has been considered by the Court of Appeals of Virginia in Snyder v. Grandstaff,
It follows from what we have said that the judgment of the Superior Court is correct and should not be disturbed.
No error.
Cited: Guilford v. Porter,