149 S.E. 687 | N.C. | 1929
Controversy without action on an agreed statement of facts. On 30 January, 1884, Haywood Waller and his wife executed and delivered to Andrew Waller a written instrument, the material facts of which are as follows:
"This deed made this 30 January, 1884, by Haywood Waller and wife, Charlotte Waller, of Lenoir County, and State of North Carolina, of the first part, to Andrew Waller, of Lenoir County, and State of North Carolina, of the second part, witnesseth:
"That the said Haywood Waller and wife, Charlotte, in consideration of the love and affection which we bear our son, Andrew J. Waller. We do lend to him during his life a tract of land to the said Andrew J. Waller, and after his death we give the land to his children, all the right, title, interest and estate, a tract of land in Lenoir County, State *509 of North Carolina, adjoining the lands of Jesse Nobles, Woodley Decton and Acy Waller and others bounded as follows, containing 46 acres. . . .
"To have the use of said land during his life, and after his death we give the land to his children, only excepting the use of timber for ourselves.
"To have and to hold to them and their heirs in fee simple forever the aforesaid tract of land, and all privileges and appurtenances thereto belonging to the said Andrew J. Waller's children, their heirs and assigns, to their only use and behoof forever."
When the deed was executed Andrew Waller had three living children; the two plaintiffs J. J. Waller and Marie Elizabeth Davis, and Viola Hall, one of the defendants. After the execution of the deed there were born to Andrew Waller and his wife the following children: James H. Waller, Henry J. Waller, Tiffany Waller Smith, Essie Waller Brown, and Ellen Waller Smith. Andrew Waller took and held possession of the land as life tenant until his death in 1929. All his children survived him, except Ellen Waller Smith, who died 5 March, 1920, survived by her husband and six children, who are defendants. On 22 February, 1923, prior to the death of Andrew Waller, the plaintiff J. J. Waller conveyed a one-eighth interest in the land to M. F. Waller, and on the same date James H. Waller and Henry J. Waller each conveyed a one-eighth interest to M. F. Waller. On 10 July, 1926, M. F. Waller died intestate survived by his widow and several children. All the parties in interest are parties to this proceeding.
The plaintiffs, two of the three children who were living when the deed was executed to Andrew Waller, brought an action against the defendant to recover possession of the land (except as to the one-eighth interest they had conveyed), and damages, claiming that the whole title vested in the children who were living when the deed was executed and that the children born thereafter had no interest in the land. The defendants denied the plaintiff's allegations and pleaded tenancy in common and asked that the land be partitioned among the tenants.
It was adjudged at the hearing that upon the death of Andrew Waller and the termination of his life estate in the lands the interest in remainder vested in his children as a class living and in being at the time of his death, that the children of Ellen Waller Smith, grandchildren of the grantor, had no legal interest in the land. The prayer of the plaintiffs was denied and the cause was remanded to the clerk for proceedings in partition. The plaintiffs excepted and appealed. The appellants argue in limine that the grantors in the deed conveyed the land therein described directly to the living children of Andrew Waller, reserving to him the use of the land for his life without the creation of an intervening estate of freehold; that as there is no conveyance to Waller there can be no remainder vested or contingent; and that the children born after the execution of the deed can have no interest in the property. This argument, we presume, is founded on the phraseology of the deed; more particularly, no doubt, on the words, "We do lend to him during his life."
An effective deed must, of course, contain operative words of conveyance — words which indicate the grantor's intention to convey his property; but the absence either in deeds or in wills of technical operative words will not usually be regarded as adequate cause for defeating an intention which is found upon examination of the whole instrument to be plainly though untechnically expressed. It was remarked inElliott v. Jefferson,
Andrew Waller having taken a life estate, our decision involving the controversy of the remaindermen will be controlled by the case of Powell v.Powell,
Affirmed.