Pinnell v. . Dowtin

ScheNCK, J. The decision of this case turns upon the ruling upon appellants’ first exceptive assignment of error which assails the following portion of' his Honor’s judgment: “Upon the foregoing agreed facts the Court doth adjudge that the plaintiff, Ellen E. Pinnell, be and she hereby is declared to be the owner in fee simple and entitled to the immediate possession of the land and premises described in the complaint . . .” The defendants, appellants, contend that George W. Dowtin received no interest under the will of his father, Cook Dowtin (the elder) for the reason that George "W". Dowtin predeceased Emily Dowtin, his mother and widow of Cook Dowtin, and that under the provisions of said will George ~W. Dowtin was to receive no interest in the land during the widowhood of Emily Dowtin, and such being the case the deed of trust executed by George W. Dowtin to C. A. Tucker, Trustee for 0. E. Jackson, and the subsequent foreclosure thereof, and deed of the trustee to Ellen E. Pinnell conveyed'no title. On the contrary, the plaintiff, appellee, contends that the deed of trust executed by George W. Dowtin to 0. A. Tucker, Trustee for C. E. Jackson, and the subsequent foreclosure deed from Tucker, Trustee, to Ellen E. Pinnell, conveyed a good indefeasible title to said Ellen E. Pinnell to the land therein described. It is apparent that the question posed by this appeal is: Was George W. Dowtin authorized by the will of his father, Cook Dowtin (the elder), to encumber with the deed of trust the lands therein described, during the widowhood of his mother, Emily Dowtin? His Honor held that he was so authorized, by holding that Ellen E. Pinnell, who claimed through and under such deed of trust was the owner and entitled to the possession of the land conveyed thereby. The correctness of this holding depends upon whether under the will of Cook Dowtin (the elder) George W. Dowtin took a vested remainder, after the particular estate for her widowhood devised to Emily Dowtin. If he took such a vested remainder then George W. Dowtin was authorized to convey his title to the trustee in the deed of trust, and upon the foreclosure of such deed of trust the deed given by the trustee to the plaintiff Ellen E. Pinnell conveyed to her a valid title, and his Honor’s judgment was *497 correct. If on the other hand George W. Dowtin took only a contingent remainder, contingent upon his surviving the widowhood of his mother, Emily Dowtin, then the deed of trust • he executed conveyed no title, since George W. Dowtin predeceased Emily Dowtin, the holder of the particular estate, and his Honor’s judgment was in error. We are of the opinion, and so hold, that the will of Cook Dowtin (the elder) devised to George W. Dowtin a vested remainder, and, therefore, his Honor’s judgment was correct. “Vested remainders, or remainders executed, are those by which the present interest passes to the party, though to be enjoyed in the future, and by which the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. The person entitled to a vested remainder has an immediate fixed right of future enjoyment, that is, an estate in praesenti, though it is only to take effect in possession and permanency of the profits at a future period, and such an estate may be transferred, aliened and charged, much in the same manner as an estate in possession, as distinguished from one which is vested in interest.” Richardson v. Richardson, 152 N. C., 705, 68 S. E., 217. “What, then, is a vested and what a contingent remainder ? An estate in remainder is an estate limited to take effect in possession immediately after the expiration of a prior estate created at the same time and by the same instrument. 23 R. C. L., 483, sec. 5. ... It is not the uncertainty of ever taking effect in possession that makes a remainder contingent, for to that, every remainder for life or in tail is and must be liable; as the remainderman, may die, or die without issue before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent.” Fearne on Remainders, Vol. 1, p. 216; Power Co. v. Haywood, 186 N. C., 313, 119 S. E., 500. The portion of the will before us for interpretation reads: “I give and devise to my wife Emily Dowtin for her ease and benefit during her lifetime and widowhood all my real estate, . . . but she will not have any power or authority to sell it or mortgage it in any way, at her death or remarriage the aforesaid land . . . shall become at once the 'property of my two children, George W. Dowtin and Helen Dowtin . . .” These devises to the children of the devisor after the expiration of the particular estate devised to the wife of the devisor for her widowhood, would seem to meet the tests of a vested remainder in that the remaindermen created thereby had “the present capacity of taking effect in possession, if the possession were to become vacant,” by the termination of the widowhood of the particular tenant. *498 Since George ~W. Dowtin took a vested remainder by tbe will of Cook Dowtin (tbe elder), and since George W. Dowtin executed tbe deed of trust by, through and under which the plaintiff claims title, his Honor was correct in holding that the plaintiff was the owner and entitled to the possession of the land involved. The judgment of the Superior Court is Affirmed.