Redden v. . Toms

CONNOR, J. This appeal was duly docketed in this Court on 3 February, 1937. The appellant, Charles French Toms, Sr., died on 5 February, 1937. On 10 February, 1937, Meta Toms, who had qualified as executrix of the said Charles French Toms, suggested his death to this Court and moved that she be made a party defendant in the proceeding, as his executrix. This motion was allowed on 11 February, 1937, under rule 37 of the Rules of Practice of this Court. See 200 N. C., 835. The appeal was heard on 24 February, 1937. It appears from the petition set out in record that Marion C. Toms died in Henderson County during the year 1917. At his death he was seized in fee and in possession of an undivided one-half interest in the land described in the petition. The other undivided one-half interest in said land was owned by his son, Charles F. Toms. By his last will and testament, which was duly probated and recorded in the office of the clerk of the Superior Court of Henderson County, the said Marion C. Toms devised the undivided one-half interest in said land owned by him at his death, to his wife, Katie B. Toms, “to be held by her during the term of her natural life, and upon her death to revert to my son, Charles French Toms, if he be alive, or to his heirs, if he be dead.” The plaintiffs are now the owners of the land described in the petition, claiming title thereto, through mesne conveyances, under a deed executed on 24 June, 1918, by Katie B. Toms and Charles French Toms. The defendants other than Charles French Toms, Sr., and his wife, Meta Toms, are Katie B. Toms and the children and grandchildren of Charles French Toms, and the husbands and wives of those who are married. Katie B. Toms, widow of Marion 0. Toms, is now living. By virtue of the deed executed on 24 June, 1918, by Katie B. Toms and Charles French Toms, to the grantees named therein, and of mesne conveyances since said deed, at the commencement of this proceeding, *314 the plaintiffs were and are now the owners of the undivided one-half interest in the land described in the petition, which was owned in fee by Charles F. Toms, at the date of said deed and were and are now also the owners of the life estate of Katie B. Toms in the undivided one-half interest in said land which was devised to her by the last will and testament of Marion C. Toms. the plaintiffs were also the owners of all the right, title, interest, and estate of Charles French Toms, Sr., in and to the said undivided one-half interest in said land, under the will of bis father, the said Marion C. Toms. the said interest was a contingent remainder. See Brown v. Guthery, 190 N. C., 822, 130 S. E., 836. Upon bis death on 5 February, 1937, after this appeal was docketed in this Court, the children of the said Charles French Toms, then living, became the owners of a vested remainder in said undivided one-half interest in said land. See Brown v. Guthery, supra. Neither Charles French Toms, Sr., nor Meta Toms, as bis widow or as bis executrix, now have any right, title, interest, or estate in said land. Conceding without deciding, that a cause of action is alleged in the petition in this proceeding against the defendant Charles French Toms, under the provisions of C. S., 1744, such cause of action did not survive bis death. For this reason the proceeding abates as to Charles French Toms, and bis appeal must be dismissed. On the facts alleged in the petition, the defendant Meta Toms has no interest in this proceeding, either as widow or as executrix of Charles French Toms. No pleadings have been filed in this proceeding by or on behalf of any of the defendants other than Charles French Toms and bis wife, Meta Toms. The rights of these defendants in and to the subject matter of this proceeding are not involved in this appeal. The proceeding is remanded to the Superior Court of Henderson County, that judgment may be entered in said court, that the proceeding abate as to the defendant Charles French Toms and bis wife, Meta Toms. The appeal is Dismissed.