62 N.C. 330 | N.C. | 1868
The complaints were the only children who survived their mother, one Elizabeth Hester, who died in Granville County in 1864. They showed that one Thomas Reeks, who died in 1802, had devised a tract of land to his wife for life, and after that to the said Elizabeth Hester for life, "and at her decease my will and desire is that the said two hundred acres of land shall be sold, and the money arising therefrom shall be equally divided between the then surviving children of her, the said Elizabeth Hester"; that they were the only children who so survived, and that they were in possession of the said land. They also set forth that the defendants claimed that one of themselves, Elba Parish, was entitled to the land as assignee of the husbands of the complainants, under deeds executed in the lifetime of Elizabeth Hester, and to which complainants were not parties; and under such claim threatened to dispossess them and have the land sold; that the husband of the complainant, Lucy, had died in the lifetime of Mrs. Hester, (331) and that Alexander Clark, the husband of the other complainant, was living and a party defendant to the bill. They also stated that they were advised that they had a right to elect to receive the land without a sale, and that they did so elect. The prayer was for an injunction, and for further relief.
The devise to Elizabeth Hester for life remainder to such of her children as should be living at her death, did not vest any estate in the plaintiffs (her daughters) during her life, because it was uncertain whether they or either of them would survive her. Their interest was contingent, and was not, and could not have been, reduced into possession by their husbands in the lifetime of their mother. Therefore, at the time when their husbands attempted to convey the *219
lands to Parish, they had nothing to convey, and their deed (332) conveyed nothing. Arrington v. Yarborough,
The plaintiffs have the right to elect to take the land instead of the proceeds of sale.
PER CURIAM. Demurrer overruled with costs.
Cited: Williams v. Hassell,