Kirkman v. . Hodgin

BrowN, J. The basis of this action is the following paper writing, referred to in the report as Exhibit B : "Agreement. — L. E. Kirkman, S. 0. Kirkman and A. L. Kirk-man. "We, L. E. Kirkman, S. O. Kirkman and A. L. Kirkman, do this day agree to the following form, in shape of division of the property of W. L. Kirkman, deceased, as follows: “L. E. Kirkman to hold until her death the note of Webb Hunt, or the proceeds thereof; also to hold the $500 to be collected from the estate of W. M. Kirkman, and after her death the balance of the proceeds to go to S. 0. Kirkman or his heirs. “A. L. Kirkman’s heirs áre to hold the lot on South Elm Street, on the west side, known as the Kirkman building; also vacant lot on east side, and half the balance of the notes, accounts, mills, stocks, safe, etc. • “S. O. Kirkman to hold the home place and the place what is known as the Dillon place; to hold all the personal property, stock, grain, hay, etc., now he is in possession of; and it is further agreed that each, A. L. Kirkman and S. O. Kirkman, shall, from this day on, have and derive such benefits as may arise from above-mentioned property allotted to each of us. Lydia E. KikkmaN, A. L. KiRkmaN, S. 0. KiRkmaN.” We agree with the conclusion reached by the learned lawyer who acted as referee in this case, that the agreement is a personal contract between the parties thereto; and to effectuate the intentions of the parties the proper construction is that at the death of Mrs. Lydia Kirkman-Davis the balance of the proceeds *591 of tbe Webb Hunt note, i. e., tbe amount of tbe deposit beld by James A. Hodgin, trustee, should be paid to tbe representatives of S. 0. Kirkman. Tbis paper writing is not an attempt by tbe absolute owner of chattels, by deed, to reserve a life estate for bis own life and then to create a remainder interest in them by a limitation over to some one else. It is well settled that such limitation over is void and tbe grantor takes tbe whole estate under tbe reservation. Dail v. Jones, 85 N. C., 222. Tbe instrument signed by tbe then Mrs. Kirkman and tbe two sons does not purport to be a deed of conveyance of property, but an executory agreement, founded upon a mutual and valuable consideration, for tbe settlement of tbe estate of their testator, W. L. Kirkman. Such an agreement may be enforced. 3 Pom. Eq., 1235. There is ample consideration to support it. To make a consideration, it is not necessary that tbe person contracting should receive any benefit; it is sufficient if the other party be subjected to loss or inconvenience. Brown v. Ray, 32 N. C., pp. 73 and 74; Sherrill v. Hogan, 92 N. C., 345. Tbe findings of tbe referee show that tbe parties to this agreement, being desirous of making a division of tbe estate of W. L. Kirkman before tbe falling-in of tbe life estate of Lydia E. Kirkman, entered into tbe aforesaid agreement. It was an obligation on tbe part of Lydia E. Kirkman-Davis to S. C. Kirkman and bis heirs or next of kin; tbe consideration on tbe part of S. 0. Kirkman being tbe conveyance by him of valuable real property in tbe city of Greensboro to bis brother, A. L. Kirkman. S. 0. Kirkman parted with bis property, both real and personal, in accordance with tbe terms of tbis contract, and tbis was a sufficient consideration to support tbe contract as against Lydia E. Kirkman and her assignee. In order to give effect to tbe plain intention of tbe parties to tbis agreement, which is tbe true principle for tbe construction of all instruments, tbe Court will not construe it into a conveyance of chattels, reserving a life estate to tbe grantor, but rather as a distinct covenant that Mrs. Kirkman shall have tbe use of tbe property in controversy during her life, to which she assented. Howell v. Howell, 29 N. C., 491. As said by Mr. Justice Battle, “Where, from tbe peculiar phraseology of tbe instrument, tbe benefit of an estate for life can be given to the grantor, or donor, by construing tbe apparent reservation into a covenant on tbe part of tbe grantee or donee that tbe other party shall enjoy tbe profits of tbe chattels granted *592 or given, then, Ut res magis valeat, quam pereai, tbe grantee or donee shall take tbe property, subject to tbe covenant.” Lance v. Lance, 50 N. C., p. 414. Tbe judgment of tbe Superior- Court confirming tbe report of tbe referee is Affirmed.