John L. Roper Lumber Co. v. Herrington

*88 Adams, J. His Honor held as a conclusion of law that tbe commissioner’s deed did not convey to tbe purchaser tbe interest of William Knowles and Robert Knowles, or tbe interest of any child that might thereafter be born to Mary Lewis Knowles, and directed a qualified affirmative answer to the first issue. The exceptions call in question the correctness of this ruling and of the judgment rendered on the verdict. The judgment was determined chiefly by the answer to the first issue; and the answer to the first issue was no doubt determined by his Honor’s interpretation of the Williams deed. In the granting clause this deed purports to make conveyance to Annie W. Herrington and Mary E. Lewis during their natural life, and at their death to their children, reserving for H. P. Lewis and his wife a life estate. The habendum is substantially identical. When the deed was executed Mary Lewis was unmarried and had no children; and while as to unborn members of a class the remainder is contingent until they are in esse, when they come in being the remainder immediately vests. The remainder to the children of Mary Lewis, after her life estate, therefore vested immediately upon the birth of the oldest child. Here the direct question* is whether the vested remainder given the children is defeated by the clause which follows the description. That the intention of the parties — particularly the intention of the grantor- — -must govern, is the cardinal rule in the construction of deeds; and such intention, drawn from the entire instrument, when once ascertained, will prevail over technical rules of construction. The obvious intention of the grantor was to convey an estate of equal dignity to Annie W. Her-rington and Mary E. Lewis for life, with remainder in fee to the children of. each; and if no children should be born to Mary E. Lewis, the remainder at the expiration of her life estate should go to Annie W. Herrington during the latter’s natural life, and at her death to her children. In these circumstances the accepted doctrine is that a remainder to a class of children, or more remote relatives, vests in right, but not in amount, in such of the objects of the bounty as are in esse and answer the description, “subject to open and let in” any that may afterwards be born before the determination of the particular estate; and a sale" may generally be authorized by the court where in case of a remainder to a class, those of the class who are in esse represent the others. In such case it is assumed that those who represent a particular class will protect the interest of all who have or may acquire an interest in the remainder. “It is certain that if land be devised to a person for life, with an executory devise in fee to his children, the. court cannot order a sale of the land before the death of any child, because, not being in esse, there *89 -can be no one before the court to represent its interests. Such, was the case in Watson v. Watson, 56 N. C., 400. But if there be any children in esse, in whom the estate in fee can vest, a sale may be ordered, because, if their interests require it, they may be represented by their guardians; and this may be done, though all of the children of the class may not yet have been born. Such is the case now before us, with the exception that there is an executory devise to the unborn children of another person, depending on the event of the tenant- for life dying without leaving issue. Can this latter circumstance make any difference? ¥e think not, because the first class of children are the primary objects of the devisor’s bounty; and as they have vested remainders in fee, and as their interests, as well as that of the tenant for life, will be promoted by having the land sold and the proceeds invested in other lands, or in stocks or other securities for their use, the court of equity is authorized, under the general power conferred by the act to which we have referred, to order a sale.” Ex parte Dodd, 62 N. C., 98. There is a full discussion of the question in Scott v. Springs, 132 N. C., 548. There Cormor, J., after reviewing the decisions and admitting that some are in conflict with the current authority in this State, said: “We have not discussed these cases for .the purpose of overruling them, but to classify and distinguish them, and to show that the language — used in Ex parte Dodd,.in respect to the power of the court to order a sale of land where there is an executory devise to persons unborn, there being members of a class next in remainder to a life tenant — has not been overruled or doubted.” 132 N. C., 556. And again, on page 564: “Without regard to the act of 1903, the court has the power to order the sale of real estate limited to a tenant for life, with remainder to children or issue, upon failure thereof, over to persons, all or some of whom are not in esse, when one of the class being first in remainder after the expiration of the life estate is in esse and .a party to the proceeding to represent the class, and that upon decree passed, and sale and title made pursuant thereto, the purchaser acquires a perfect title as against all persons in esse or in posse.” Irvin v. Clark, 98 N. C., 438; Branch v. Griffin, 99 N. C., 174; Yancey’s case, 124 N. C., 151; Hodges v. Lipscomb, 128 N. C., 57; Dunn v. Hines, 164 N. C., 114; Bullock v. Oil Co., 165 N. C., 64; 21 C. J., 986, 1003. The commissioner’s deed, however, was executed after the enactment •of the statute of 1903. This act (C. S., 1744) provides that where there is a vested interest in real estate and a contingent remainder over to persons who are not in being, or when the contingency has not yet happened which will determine who the remaindermen- are, there may be a sale of the property by a proceeding in the Superior Court at term time. *90 The proceeding in wbicb tbe commissioner’s sale of tbe land in question was decreed was instituted before tbe clerk; but tbe proceeding was not for this reason void or invalid. Tbe irregularity is cured by tbe act of 1905, wbicb is as follows: “In all cases where property bas been conveyed by deed, or devised by will, upon contingent remainder, executory devise, or other limitation, where a judgment of a Superior Court bas been rendered authorizing tbe sale of such property discharged of such contingent remainder, executory devise, or other limitation in actions or special proceedings where all persons in being who would have taken such property if tbe contingency bad then happened were parties, such judgment shall be valid and binding upon tbe parties thereto, and upon all other persons not then in being: Provided, that nothing herein contained shall be construed to impair or destroy any vested right or estate.” O. S., 1745. In the present case Ruth Knowles and Annie Knowles, children of Mary Lewis, were of the class first in remainder after the expiration of the life estate; they were made parties to the special proceeding and were represented by their general guardian; they represented the entire class of remaindermen, including William and Robert, and the decree therefore bound the entire class. Since the first issue was answered by the court as a matter of law, the answer to the second will not be disturbed. The answer to the first issue will be modified so as to include the interest of William Knowles and Robert Knowles and of any after-born child of Mary Lewis, and the judgment will be rendered in accordance with the modified verdict. The cost of the appeal will be taxed against the appellee. Modified and affirmed.