88 S.E. 774 | N.C. | 1916
ALLEN, J., dissenting. The case was submitted to the court below upon the pleadings and exhibits for its opinion and judgment as to whether the plaintiffs were seized in fee simple absolute of a one-third undivided interest in the lands in question, which undivided interest the plaintiff contracted, for the sum of $5,000, to sell and convey to the defendant, vesting in him a good and sufficient indefeasible title for said estate therein, with the usual covenants of warranty. A proper deed has been tendered to the defendant, and the plaintiffs have otherwise complied with the contract, on their part, provided their title is good, and this must be determined by a construction of the deed fully set out in the case, as follows: *552
This deed, made this 6 April, 1880, by and between Nancy S. Smith, widow of the late B.R. Smith, of the county of Mecklenburg and State of North Carolina, of the first part, Carrie E. Smith, wife of W. Mc. Smith, the said William Mc. Smith and W. H. Bailey, of the same county and State, of the second part, and Lillian A. Smith and W. Bernard Smith, children of the said W. Mc. Smith and Carrie E. Smith, and Anna B. Lee and B. Rush Lee, children of Junius M. and Elizabeth Jane Lee, and Elizabeth Jane Lee, of the third part: witnesseth, that the party of the first part, in consideration of the natural love and affection she has towards the parties of the second part and third part, and the sum of $1 by the said parties of the second part in hand paid (the receipt of which is hereby acknowledged), has given, granted, bargained, and sold, and by these presents does give, grant, bargain, sell, and convey unto the said Carrie E. Smith, for and during the life of her husband, the said W. Mc. Smith, and in the event she survives him, so long as she shall remain his widow, that portion of the tract of land, hereinafter described, which lies westerly of the track of the Charlotte, Columbia and Augusta Railroad, the (488) whole tract being situate in said county on the waters of Sugar Creek, adjoining the lands of Martin Icehouer, John Griffith, and others, and bounded as follows, to wit: (Here follows the description of the lands by metes and bounds), containing 430 acres, more or less. And after the death or second marriage of the said Carrie E. Smith (outliving her said husband), to the said Lillian A. and W. Bernard Smith and their heirs, with limitations hereinafter expressed. If that event shall happen in the lifetime of the said W. Mc. Smith, to him, the said W. Mc. Smith, in special trust, and for the only use, support, benefit, and behalf of the said Lillian A. Smith and W. Bernard Smith and such other children as shall have then been born to the said W. Mc. Smith by the said Carrie or any future wife, until the youngest child shall arrive at the age of 21 years; and upon the arrival of the youngest child aforesaid at 21 years of age, then to the use of the said Lillian A. Smith, W. Bernard Smith, and any other child or children that may be born to the said W. Mc. Smith by the said Carrie E. Smith or any future wife, and their heirs forever; and in the event of the death of any of said children without issue, his or her share shall vest in the survivor or survivors and their heirs; and in the event of the death of all of said children without issue in the lifetime of said W. Mc. Smith, then to W. H. Bailey and his heirs, in trust to receive and pay the profits thereof on the first day of January and August in each and every year to the said W. Mc. Smith for the support of him, the said W. Mc. Smith (being the son of the party of the first part), to an amount not exceeding the sum of $500 annually, the said trust being *553 intended to be created under and pursuant to section 11 of chapter 42 of Battle's Revisal, for and during the natural life of the said W. Mc. Smith, and after the death of all of the children of the said W. Mc. Smith as aforesaid without issue, and the death of the said W. Mc. Smith, to the said Anna B. Lee and B. Rush Lee and their heirs; and in the event of the death of either of the last named without issue, to the survivor and his or her heirs, as the case may be; and if both should die without issue after the vesting of the estate in them upon the contingencies as above contemplated, then to the said W. H. Bailey and his heirs, in trust for the sole and separate use of the said Elizabeth Jane Lee and her heirs, free from the control and without being in any way subject to the debts of her husband, Junius M. Lee: Provided, that the said Elizabeth Jane Lee shall not have the power to sell her said estate or the profits arising therefrom by anticipation or otherwise; andProvided, also, and it is hereby agreed and declared, that it shall and may be lawful to and for the party of the first part, at any time during her natural life, by any writing under her hand and seal, attested by two or more credible witnesses, or by her last will and testament in writing so attested as aforesaid, to alter, change, revoke, (489) annul, and make void the uses hereinbefore limited to the children of the said W. Mc. Smith, limited to vest after the death or second marriage of the said Carrie E. Smith, and to limit, appoint, and declare such use to take effect only from and after the death of the said W. Mc. Smith, and that for the interval between the death of the said Carrie E. Smith and the said W. Mc. Smith she may limit the estate to the said W. H. Bailey and his heirs, to hold in trust as to the profits for the said W. Mc. Smith in like manner and with like force and effect and subject to the same restrictions as hereinbefore contingently provided for upon the death of all of the children of the said W. Mc. Smith without issue in his lifetime; and Provided, also, and it is further hereby agreed and declared, that it shall and may be lawful for the party of the first part, in manner and form aforesaid, to alter, change, revoke, annul, and make void the uses and estates hereinbefore contingently limited, appointed, and declared to the said Elizabeth Jane Lee, Anna B. Lee, and B. Rush Lee, or any or either of them, and any other use in lieu and stead of such of these as she may revoke, to limit, appoint, and declare, as to her, the said party of the first part, shall seem meet, does hereby authorize and empower the said Carrie E. Smith to sell or mortgage the said realty in fee simple as both a power attached and appurtenant to her estate as well as by virtue of a power from the party of the first part as her attorney in fact under the power of revocation and new appointment herein inserted. *554
In witness whereof the parties to this deed have hereunto set their hands and seals the date above written.
NANCY S. SMITH, [SEAL] CARRIE E. SMITH, [SEAL] W. M. SMITH, [SEAL] W. H. BAILEY, [SEAL] ELIZABETH JANE LEE, [SEAL] ANNA B. LEE, [SEAL] His B. RUSH X LEE. [SEAL] mark
In regular proceedings between the parties, the lands conveyed by the above deed were sold and the proceeds reinvested in the lands, which are the same described in the contract between the parties to this action, and the title of the grantors of said lands is admitted to be good. It is further admitted that Carrie E. Smith, wife of W. Mc. Smith, died 18 April, 1912, two weeks before the death of her husband, he not having remarried. They had four children, W. Bernard Smith, Lillian Smith, who intermarried with R. C. Springs (plaintiffs in this action), Julia E. Smith and Junius M. Smith. At the date of (490) the original deed from Mrs. Nancy S. Smith to B.R. Smith and others, Lillian Smith (now Springs) was 3 years old, and Julia E. Smith and Junius M. Smith were not then born, but the three children of W. Mc. Smith and Carrie E. Smith, Lillian, Julia E., and Junius M. Smith, have each for some time been over 21 years of age. The other child, W. Bernard Smith, died in infancy, during the lives of his parents, being without issue, as he was only 6 years old at the time of his death. Anna B. Lee died unmarried and without issue, leaving surviving her mother, Mrs. Elizabeth Jane Lee, a widow, and her brother, B. Rush Lee, who intermarried with Ella Wriston, and Mrs. Lee and B. Rush Lee and wife have conveyed their interests in said land to the plaintiffs, Mrs. Lee having had only two children, Anna B. Lee and B. Rush Lee. Nancy S. Smith has been dead for many years.
The contention of the plaintiffs is that the interests of the three surviving children of W. Mc. and Carrie E. Smith, viz., Lillian S. Springs, Julia E. Smith, and Junius M. Smith, vested absolutely in them when Junius, the youngest of them, arrived at full age, or when their father died in 1912, some time before this suit was brought, while the defendant contends that the legal effect of the limitations and restrictions in the deeds is to confine the estate of the plaintiffs to a defeasible fee, or one subject to be divested by the death of the plaintiff Lillian S. Springs without issue, and that the estate of the said plaintiff and the other tenants in common is dependent upon the principle of survivorship *555 inter se, and, further, that the contingent estates following that of the plaintiff and her cotenants are "good, valid, outstanding and subsisting estates," and, therefore, the plaintiffs are unable to comply with their contract, as they cannot convey the estate described therein.
The court held with the plaintiffs, and judgment was entered accordingly, from which defendant appealed.
After stating the case: The general rule for the construction of a deed is not essentially different from that which governs in the interpretation of other instruments, which is, that we must seek for the intention, and, when discovered, it should be enforced if not inconsistent with the law. Rowland v. Rowland,
The extended reference to this feature of the case will more fully appear hereafter.
By the terms of the deed, then, when the youngest child arrived at full age the estate in the land vested in the children, subject to be determined as to each if he or she died without issue at any time, and this succession of survivorships extended to the longest liver, and if he or she had died without issue during the life of W. Mc. Smith, the limitation to Mr. Bailey, the trustee named in the creation of the spendthrift trust, would have taken effect; but as all the children survived their father, W. Mc. Smith, the limitation over was defeated, and the estate remained in them, with its defeasible quality.
But it is contended by the counsel, Mr. Glasgow, who argued the case here for the plaintiff, and who certainly presented it with great force and learning, that the estate became absolute in the children either at the time the youngest was 21 years old or, at all events, at the death of W. Mc. Smith; but we think if it were so held it would be contrary to the clearly expressed intention of the donor and the terms of the deed. The contention is based upon several considerations, among them being that in doubtful cases any interest, whether vested or contingent, ought, if possible, to be construed as absolute (493) or indefeasible in the first instance rather than defeasible; but if it cannot be so construed, such a construction ought to be put upon the conditional expressions which render the estate defeasible as will confine their operation to as early a period as may be, so that it may become an absolute interest as soon as it can fairly be considered to be so, and that the law favors the free and uncontrolled use and enjoyment of property, with the power of alienation, while the defeasible quality of an interest tends to abridge both. We do not see at what period we could hold that the estate should become absolute in the children, if it is not indicated in the deed. It is very sure that at the maturity of the youngest child it was intended that the estate should "then" vest in them as tenants in common, subject to be defeated by the death of any without issue. When the youngest is of age, the limitation is then made to the children, designating two of them by name, and there is nothing to show an intention that they should then take absolutely, for the condition as to survivorship is attached to the estate in common then created, or which then vested in possession, freed from the trust. It was not intended that they should take absolutely at the death of W. Mc. Smith, if they survived him, as there are no words to indicate that the event of dying without issue should take place in his lifetime rather than at any time, or which authorize us to select the event of his *558
death as the one upon the happening of which the estate should vest absolutely and unconditionally in them. When the grantor comes to provide for the ulterior limitation, he fixes the death of all of them as the event upon which the estate should go over and vest in the trustee for the benefit of W. Mc. Smith; but that is all. If this event should not happen, it was her clear intention that, as among themselves, their estates should be defeasible and there should be successive survivorships. There is no provision for a division of the land. There is nothing to confine the defeasible quality of their estates to any single period, other than that of the death without issue of all the children save one. Hilliard v.Kearney,
It will be observed that in this deed the words are substantially employed which Chief Justice Pearson said would create a successive survivorship. If any of them shall die, his or her share shall vest in the "survivors or survivor."
The cases relied on by plaintiff are not in point. There is no term fixed for a division, as in Bank v. Johnson,
It will appear from a perusal of this deed that the grantor was striving to keep the property within one line of devolution, so that those she favored, or the primary objects of her bounty, could have and enjoy it as long as permitted by the law, and for this purpose she created the estates of survivorship to the last one in the line, and even reserved a power of revocation for the purpose of better effectuating her intention, and she did revoke the power given to Carrie E. Smith, to sell or mortgage her estate. As she did not revoke the use in favor of the children, either by her will or by any other writing, the power of revocation has no effect upon the construction of the deed as to them. Witherington v. Herring,
It was argued that our construction of the limitation would violate the rule against perpetuities, but we do not think so, for the rule, as its very language implies, refers solely to the vesting of estates, and does not concern itself with their possession or enjoyment, nor does it require that interest should end within specified limits. 30 Cyc., 1480, *559
1482; Baker v. Pender,
Our conclusion is that there was error in the ruling of the Superior Court. It may be, though we give no opinion in regard to it, that by reciprocal conveyances or mutual releases, as between the three children, the title can be perfected in each of them as to his or her third interest,Beacom v. Amos, supra,
Reversed.
ALLEN, J., dissenting. *560
Cited: Lee v. Oates,