"The court is further of the opinion and adjudges that the widow is not entitled to have the value of her life estate determined and paid to her in cash, but that she is entitled only to the interest on the value of her life estate, to be received and paid to her annually. The fund arising from such sale the commissioner will pay into court, and the same will be invested and secured to said widow and remaindermen (513) in such manner and with such safeguards as the court shall decree and deem wisest and best for all the parties to this proceeding."
From this decree the defendants alone appealed to the Supreme Court. The plaintiffs made no exception to it, and did not appeal. (See Gillespie v.Allison, 115 N.C. 542" court="N.C." date_filed="1894-09-05" href="https://app.midpage.ai/document/gillespie-v--allison-3675421?utm_source=webapp" opinion_id="3675421">115 N.C. 542).
The defendants in the appeal contended that, as their rights accrued prior to 1887, to-wit, in 1866, the act of 1887, ch. 214, was not applicable to this case.
This court affirmed the judgment of the Superior Court, holding, among other things, that the act of 1887 was applicable to this case.
At June Term, 1895, of Mecklenburg Superior Court, his Honor, W. S. O'B.Robinson, rendered a decree in which he directed "the proceeds of the sale of the said real estate, when collected by the commissioner, to be paid to the Clerk of the Superior Court, to be by him invested upon bonds secured by deeds in trust upon real estate in the city of Charlotte of sufficient value to secure the repayment of the loans
so made by him, said loans to bear the highest interest allowed by law, and that the Clerk collect the interest on such loans and pay the same to the plaintiff Alice Owens or to her assignee during the life or widowhood of the said Alice Owens; and upon her marriage or death the corpus of the fund be paid to the parties entitled thereto according to their interests."
This was a petition to sell land for partition, and under authority of this Court (Gillespie v. Allison, 115 N.C. 542" court="N.C." date_filed="1894-09-05" href="https://app.midpage.ai/document/gillespie-v--allison-3675421?utm_source=webapp" opinion_id="3675421">115 N.C. 542) the lands have been sold and the proceeds are now in custody of the court. By certain devises Alice B. Owens became the owner of the land during her life or widowhood, and upon the happening of (514) either event the possession of the land vested in the other parties to this action in remainder and as tenants in common, proportional to their several rights. The widow and some of the remaindermen now pray the court to have the present value of the several estates ascertained, including the value of the estate of the widow for life, and that the amounts so ascertained be paid to the several parties in severalty and absolutely, the widow offering to give solvent bonds to refund, in the event of her marriage, the amount to which she would not be entitled in the event of such marriage. The other remaindermen resist the motion, and the sole question is, Have we the power to grant it?
At common law, tenants in common in remainder or reversion could not have partition during the existence of a widow's dower estate, because the requisite of possession was wanting. Wood v. Sugg, 91 N.C. 93" court="N.C." date_filed="1884-10-05" href="https://app.midpage.ai/document/wood-v--sugg-3674957?utm_source=webapp" opinion_id="3674957">91 N.C. 93. The right of remaindermen to have partition whilst a dower estate is outstanding was given by statute (The Code, sec. 1909) by allowing the widow to take her share, estimated during the probable period of her life, in severalty and absolutely. This privilege was extended in all cases of a life estate and remainders over by act of 1887, ch. 214. The life estate of the widow in this case is contingent by reason of the condition annexed, which would defeat it before its natural termination, and we are not aware of any practicable rule by which to find the present value of an estate duranteviduitate. The act of 1887, ch. 214, does not embrace such an estate, and we see no common-law or statutory authority to grant the motion against the will of the remaindermen. The proceeds of the sale remain real estate until partition is made.
Affirmed.
Cited: Makely v. Shore, 175 N.C. 124" court="N.C." date_filed="1918-02-20" href="https://app.midpage.ai/document/lucas-v--belhaven-3649544?utm_source=webapp" opinion_id="3649544">175 N.C. 124.
(515)