Cooley v. . Lee

Hoke, J. On the facts embodied in the judgment we concur with his Honor that plaintiffs are entitled to five-fourteenths and defendant Mildred to one-fourteenth of the property in controversy. It is admitted that the title was in G. M. Cooley and-that he died in 1894, having made his last will and testament devising the property in controversy to his widow, Mary J. Cooley, for life, and then “one-half to his son, R. A. P. Cooley and his heirs and the other half to the heirs of James F. Cooley, his other son”; that James F. Cooley was living at the time of the death of the devisor and still is, and plaintiffs are his children, six of whom were born at the time of devisor’s death and one after such death and during the life of devisor’s wife, life tenant under the will. Under our statute, Revisal, sec. 1583, this devise of the one-half interest, subject to a life estate in the widow, being to the heirs of a living person, conveys such interest to the children of the person designated, and being, in terms, to a class, under various decisions in our State it will include all who are members of the class and fill the description at the.time the particular estate terminates. Graves v. Barrett, 126 N. C., 267; Irvin v. Clark, 98 N. C., 437; Hawkins v. Everett, Exr., 58 N. C., 42; Simpson v. Spence, 58 N. C., 208; Knight v. Knight, 56 N. C., 168. In Wise v. Leonhardt, 128 N. C., 289, in which the after-born children were excluded, the decision was made to rest on the ground that, in order to an application of the principle to devises of realty, there must be an intervening estate for life or years between the death of the testator and the coming into the possession of the estate in remainder. This, then, being the recognized principle, the seven children of J. F. Cooley, both those horn before and the one born after the death of the *22 devisor and prior to the death of the life tenant, according to the terms of the will, became the owners of the one-half of the property, equal to seven-fourteenths, subject to the life estate in their grandmother, and they have done nothing to destroy or impair these interests save in ease of ~W. D. Cooley, who, on 1 July, 1906, conveyed his share to defendant Mildred, which share was allowed her under his Hon- or’s judgment, and of Roger D. Cooley who, on 10 July, 1906, conveyed all of his title and interest to his grandmother, Mary J. Cooley. She having theretofore joined in a deed for the property to defendants, conveying same with full covenants, this conveyance to her by Roger D. of his one-fourteenth interest should inure to the benefit of her grantee and pass this interest to him by way of “estoppel or rebuttal,” Buchanan v. Harrington, 141 N. C., p. 39; Hallyburton v. Slagle, 132 N. C., p. 947; Taylor v. Shufford, 11 N. C., p. 127; the result being, as declared in the judgment, that plaintiffs who have not disposed of their interests hold five-fourteenths, Mildred ■ holds one-fourteenth, and defendants, who bought from the widow and two sons and heirs at law of G. M. Cooley, to wit, R. A. P. and James E. Cooley, prior to the probate and registration of the will, are entitled to eight-fourteenths, that is, seven-fourteenths under the deed from R. A. P. Cooley and one-fourteenth by way of rebutter, as heretofore indicated. It is urged against the correctness of his Honor’s judgment that the deed of the widow of G. M. Cooley and his two sons and heirs at law, R. A. P. and J. F. Cooley, executed in March, 1897, at least three years after the death of G-. M. Cooley, devisor and former owner, should be held to pass the title as against the devisees, and this chiefly by reason of section 3139 of Revisal, providing, among other things, that “No will shall be effective to pass real or personal estate unless it shall have been duly proved and allowed in the probate court of the proper county, recorded in the office of the clerk of the Superior Court of the county where the land lies,” etc.; that the will in question here was not proven until 1899 and not recorded in Sampson County till 1910. It is true that the will is not effective to pass the property until proved and allowed and recorded as the statute requires, but there is no statute of limitations as to the time when a will may be admitted to probate, Steadman v. Steadman, 143 N. C., p. 345; and it is held that our ordinary registration act, Revisal, sec. 980, has no application to wills, Harris v. Lumber Co., 147 N. C., p. 631; Bell v. Couch, 132 N. C., p. 346; and when the formalities as to proof and recording of a will have been complied with, it then becomes effective and relates back to the death of the devisor, passing the title from that date and, at the time when the rights of these plaintiffs vested, avoiding all dispositions or conveyances of the property by the heirs contrary to the provisions of the will, unless the interests of the claim *23 ants are protected by tbe statute of limitations or some recognized equitable principle. Steadman v. Steadman, supra; Johns v. Jackson, 67 Conn., p. 89; Barnard v. Bateman, 76 Mo., 414; Goodman v. Winter, 64 Ala., 410; Tonart v. Rickert, 163 Ala., 362; Bleidorn v. Pilot Mtn. Co., 89 Tenn., pp. 166-173; Wilkinson v. Leland, 27 U. S. (3 Peters), 629; 1 Underbill on Wills, p. 21; Gardner on Wills, p. 614. It is well to note tbat tbe Legislature of 1915, chapter 219, have enacted a statute to appear as a proviso to section 3169 of tbe Eevisal, as follows: “Provided, tbat tbe probate and registration of any last will and testament shall not affect tbe rights of innocent purchasers for value from tbe heirs at law of tbe testator when such purchase is made more than two years after tbe death of such testator, unless tbe said last will and testament has been fraudulently withheld from probate,” a similar statute to tbat which has long prevailed in case of intestacy. Eevisal, sec. 70. But tbe statute does not, and does not purport to, apply to tbe facts presented in this record. It is further insisted tbat defendants’ title has matured by reason of adverse occupation of the property in tbe assertion of ownership under tbe deed of tbe widow and two sons of tbe devisor since 1897, tbe date of tbat conveyance; but this position cannot be sustained as to any of tbe plaintiffs by reason of tbe existence of tbe life estate conferred by tbe will on Mary J. Cooley, wife of devisor and one of tbe grantors in tbe deed under which defendants claim. Her deed, while it did not convey tbe title to tbe property, did convey what she bad — a life estate devised to her under the will — and tbe occupation of defendant, therefore, did not become wrongful until tbe death of this life tenant, nor would tbe statute run except from tbat date. A title by possession does not mature unless tbat possession has been hostile for tbe requisite period and subjecting tbe occupant to action by tbe true owner for tbat length of time. If, then, plaintiffs bad sued defendant before tbe life tenant died, their action would have failed because of tbe life estate conveyed to him under bis deed, and so bis occupation was not wrongful or hostile to tbe true title till tbe life estate terminated, nor did tbe statute begin to run before tbat date. Jefferson v. Lumber Co., 165 N. C., p. 46; Smith v. Proctor, 139 N. C., p. 314; Everett v. Newton, 118 N. C., 919. Tbe life tenant did not die till September, 1908, and seven years bad not elapsed before tbe institution of this suit against defendant, and so none of plaintiffs are barred. It would seem tbat as tbe deed of E. A. P. Cooley and Mary J. Cooley conveyed to defendant eight-fourteenths of tbe property, constituting him a tenant in common with plaintiffs, adverse occupation for twenty years would be required to defeat plaintiffs’ claims. Dobbins v. Dob *24 bins, 141 N. C., p. 210. Again, it is contended tbat some of the claimants are barred because more than three years had elapsed since their cause of action accrued on the death of the life tenant, and this by reason of section 362 of the Revisal, in reference to disabilities under the statute of limitations and their removal. That section provides that, when a person, at the time his cause of action accrues, is within twenty-one years of age, insane or imprisoned, etc., he shall have the general time specified in the statute within which to bring his action after the disability shall have been removed, except that, in an action to recover real property, etc., he shall commence his action within three years after the removal. It was by no means the purpose or effect of this section to bar the right of an infant or insane or imprisoned person by any period short of the general time specified and required in the case of adults. They are to have the full time allowed by the statute within which to assert their rights, but the provision by correct interpretation means that the statute of limitations continues to run in case of infancy, etc., but that, although seven years or other specified period may have elapsed, such person shall always have as much as three years after disability removed within which to sue. Clayton v. Rose, 87 N. C., p. 107; 25 Cyc,, p. 1262. In this last citation it is said: “The general rule is that the various statutes of limitations do not operate as a bar to an action by a minor for the recovery of realty; some of the statutes holding that his cause of action only accrues upon his attaining his majority, while in other jurisdictions it is held that the operation of the statute is not suspended during infancy, but the minor is merely given a designated period after attaining his majority to bring suit, if the period of limitation has' expired” — North Carolina being in the latter class. As we have heretofore shown, not more than six years have elapsed from the death of the life tenant before this suit instituted. Their cause of action did not accrue to them till that date, and none of plaintiffs, therefore, are barred by any statute applicable to their claim. There is no error, and the judgment of his Honor is Affirmed.