Chas. W. Priddy & Co. v. Sanderford

BarNhill, J. This appeal presents for decision two questions: (1) Is one of several tenants in common of real property which is subject to an outstanding life estate entitled to have a sale thereof for partition prior to the expiration of the life estate; and (2) are the children of the testator seized of a vested or a contingent remainder? The first question is answered by statute. For the purpose of partition the tenants in common of a vested remainder are deemed to he seized and possessed thereof as if no life estate existed and the existence of the life estate is no bar to a proceedings for sale for partition. C. S., 3234. Gillespie v. Allison, 115 N. C., 542. See also Baggett v. Jackson, 160 N. C., 26, 76 S. E., 86. However, this shall not interfere with the possession of the life tenant during the existence of her estate. She is not a tenant in common with the plaintiff. While she may waive her rights and consent to the sale of her estate, C. S., 3235; Sides v. Sides, 178 N. C., 554, 101 S. E., 100, this may not he done, against her will, in a partition proceeding. Ray v. Poole, 187 N. C., 749, 123 S. E., 5. In the construction of a will the object is to arrive at the intention of the testator and it is the policy of the law that a devise should take effect at the earliest possible moment that the language will permit. McDonald v. Howe, 178 N. C., 257, 100 S. E., 427. The law favors the early vesting of estates—it hastens the time when the ulterior limitation takes on a transmittible quality. Hence, the inclination is to construe legacies, and especially provisions for children, to he vested and transmittible if the will possibly admits of it; and they are most reluctantly held to be contingent. Gill v. Weaver, 21 N. C., 41. The intent to postpone the vesting of the estate must he clear and manifest and not arise by mere inference or construction. 23 R. C. L., 524. The remainder is vested, when, throughout its continuance, the remainderman and his heirs have the right to the immediate possession whenever and however the preceding estate is determined; or, in other words, a remainder is vested if, so long as,it lasts, the only obstacle to the right of immediate possession by the remainderman is the existence of the preceding estate; or, again, a remainder is vested if it is subject to no condition precedent save the determination of the preceding estate. 23 *425 R. C. L., 504. It is a fixed interest, to take effect in possession after a particular estate is spent. 23 R. C. L., 498; Power Co. v. Haywood, 186 N. C., 313, 119 S. E., 500. Remainders will be deemed to vest at the death of the testator, when the will becomes operative, unless some later time for the vesting, as the termination of the particular estate or the time of the payment or distribution, is clearly expressed by the words of the will, or is necessarily implied therefrom; such is presumed to be the testator’s intention unless the contrary appears. 23 R. C. L., 525. Words of futurity, apparently importing a contingency, are often construed as contemplating a present devise of a remainder with right of enjoyment only after the future event. Where a particular estate is created by will, with a remainder over upon the happening of an event, the words descriptive of the event are construed as referring merely to the period when the enjoyment of the prior estate determines, and not as designed, in the absence of express words or a manifest intent to that effect, to postpone the vesting of the remainder over. Adverbs of time such as “when,” “thereafter,” “then,” “after” and the like, and adverbial terms of time such as “at the death of” and “upon the death of” the life tenant in a devise of a remainder are construed to relate merely to the time of the enjoyment of the estate, and not to the time of the vesting in interest. They do not create a contingency, but merely denote the commencement of the remainder in point of enjoyment. Rives v. Frizzle, 43 N. C., 237; Dixon v. Pender, 188 N. C., 792, 125 S. E., 623; Witty v. Witty, 184 N. C., 375, 114 S. E., 482; Power Co. v. Haywood, supra; Devane v. Larkins, 56 N. C., 377; Elwood v. Plummer, 78 N. C., 392; Harris v. Russell, 124 N. C., 547, 23 R. C. L., 526-27. See also Anno. L. R. A., 1918-E, 1098. It is the general rule that, where the remainder is to all persons of a specified class or to their next of kin or lawful heirs or representatives, and not merely to specified persons of a class, they take a vested remainder. Yarn Co. v. Dewstoe, 192 N. C., 121, 133 S. E., 407; Dixon v. Pender, supra; Jones v. Oliver, 38 N. C., 369; Jenkins v. Lambeth, 172 N. C., 466, 90 S. E., 513; Baugham v. Trust Co., 181 N. C., 406, 107 S. E., 431, 23 R. C. L., 523; 40 Cyc., 1481; and to ascertain who takes the roll must be called as of the effective date of the will — the date of the death of the testator. Taylor v. Taylor, 174 N. C., 537, 94 S. E., 7; Dixon v. Pender, supra; Yarn Co. v. Dewstoe, supra; Gurley v. Wiggs, 192 N. C., 726, 135 S. E., 858. Here the devise is to the testator’s children as a class and not to any particular group or limited number thereof. There is no language used which indicates an intention that the devise is to become effective at any *426 time other than the effective date of the will. The only circumstance which prevents the immediate enjoyment of the estate is the existence of the life estate. The term “or their representatives” is a term of inheritance synonymous with “heirs” which guards against any lapse of legacy, 23 R. C. L., 538-39, and gives assurance that either the children or those who represent them shall have the enjoyment of the estate devised. It creates neither a contingency nor a limitation over, but denotes the inheritable quality of the estate in remainder. Hence, Graham Haithcock, at the death of the testator, became seized of a one-fifth interest in remainder in the locus in quo. It is so admitted in the answer. This interest passed to plaintiff under the foreclosure deed and is a sufficient interest to support the proceedings and entitle plaintiff to the relief prayed. The court below, in rendering its decision, relied upon Moseley v. Knott, supra. That case is distinguishable. There the 'devise was to two daughters or the survivor for life with the remainder to the issue of both or either, but on failure of such issue at the death of the survivor of the two, to her “own lawful heirs.” Neither life tenant left issue surviving. Clearly the interest of claimants was contingent and could not vest before the death of the life tenants, for not until then could it be determined that they would leave no issue surviving. Before a decree of sale may be entered certain facts must be found. C. S., 3233; Ledbetter v. Pinner, 120 N. C., 455, 27 S. E., 123; Vanderbilt v. Roberts, 162 N. C., 273, 78 S. E., 156. Hence, the judgment entered must be vacated and the cause remanded for further proceeding. Error and remanded.