Poole & Blue, Inc. v. Thompson

Hoke, J., after stating the case: Under the will of B. J. Fisher, deceased, the property in controversy being a portion of that “situated in America” is devised to his wife for life, or until her remarriage, with a contingent remainder to their children, and to the children of those who had married and died leaving children prior to the time for the vesting of this estate or interest, which is the death or remarriage of the wife. This is held to be the proper construction of the will in Thompson v. Humphrey, 179 N. C., 44, where the question is directly presented and determined. "While the judge, in one place in that opinion, refers to the interest of these children as a determinable fee, this is evidently a mere inadvertence, and both the reasoning in the case, the authorities cited, and the direct and controlling expressions in the body of the opinion, clearly show that the interest of these children during the life, or until the remarriage of their mother, is but a contingent remainder. Cilley v. Geitner, 182 N. C., 714; Rees v. Williams, 164 N. C., 128; [598] S. c., 165 N. C., 201; Latham v. Lumber Co., 139 N. C., 9; Bowen v. Hackney, 136 N. C., 187; Whiteside v. Cooper, 115 N. C., 570. This being tbe nature of tbe estate beld by them, tbe deed of tbe mother and children, at tbe time of its execution, did not pass to defendants a good title, for if one of these children should marry and die leaving children before the vesting of their interest, these, the grandchildren of the testator, would take and hold their interest in the property directly from him and under his will, and the deed of their parents, therefore, would have no effect upon that portion of the property. Recognizing that this position would raise some question as to the title offered by defendant, and with the purpose of perfecting same as far as it could be done, Mrs. Fisher, the life tenant, and her children, the contingent remaindermen, together with the defendants who had bought and taken the deed for the property, instituted an action under O. S., 1744, which authorizes a sale of property, in certain instances, whenever there is a vested interest in the same with a contingent remainder over to persons who are not in being, or when the contingency has not yet happened which will determine whom the remaindermen are. The purpose of this statute is not to destroy the interest of the more remote contingent remaindermen, but to enable the present owners to sell the property and make a good title to the same, to hold the proceeds as a fund subject to the claims of persons who may be ultimately entitled thereto, and with this end in view, the statute provides that when the holder of a vested interest and those in immediate remainder, who on the happening of the contingency would then take the property, at the time of action commenced, join in a petition for sale those remotely interested may be represented by guardian ad litem, duly appointed, and when it is made to appear that the interest of all parties require, or would be materially enhanced by it, the court may order a sale of said property, or any part thereof, for reinvestment, either in purchasing or improving real estate, etc., or invested temporarily to be held under the same contingencies, and in like manner as was the property ordered to be sold, etc. And the authorities hold that where it is shown further that the best interest of all the parties will be thereby promoted, the property may be disposed of at -public or private sale, subject always to the approval of the court having jurisdiction of the matter. McLean v. Caldwell, 178 N. C., 424; Dawson v. Wood, 177 N. C., 159; Pendleton v. Williams, 175 N. C., 248; Thompson v. Rospigliosi, 162 N. C., 145. The positions more directly pertinent to the facts of this record are set forth in some of the head-notes of the Dawson case, supra, as follows: “Proceedings to have lands sold that are subject to a life estate, with limitation over, on contingencies which will prevent the ascertainment [599] of the remaindermen during the life of the first taker, etc., may be instituted by any person having a present or vested interest in the lands. Pell’s Revisal, sec. 509; O. S., 1744.” “The provisions of Laws 1905, ch. 548, requiring that the proceeds of the sale of land under the statute, where the remaindermen of contingent interests cannot be ascertained in the lifetime of the first taker, shall be reinvested in realty within two years, was removed by Laws 1907, chs. 956 and 980, leaving the matter of reinvestment somewhat in'the discretion of the court, with the clear intimation that the reinvestment in realty should be made when an advantageous opportunity should be offered.” “In proceedings under the statute (Pell’s Revisal, sec. 1590; C. S., 1744) to sell lands held in remainder, upon contingencies rendering the remaindermen incapable of present ascertainment, etc., the necessary parties defendant are those of the remaindermen who, on the happening of the contingency, would have an estate in the property at the time of action commenced, and those remotely interested to be represented and protected by a guardian ad litem, as the statute provides.” “Pell’s Revisal, sec. 1590; C. S., 1744, providing for the sale of land affected with certain contingent interests does not in its terms or purpose profess or undertake to destroy the interests of the contingent remainder-men in the property, but only contemplates and provides for a change of investment, subject to the use of a reasonable portion of the amount for the improvement of the remainder, properly safeguarded,' with reasonable provision for.protecting the interest of the unascertained or more remote remaindermen by guardian ad litem, etc., and is constitutional and valid.” And.in the opinion in McLean v. Caldwell, supra, the Court said: “From a perusal of these cases, and the authorities cited therein, it will clearly appear: (1) That on the facts presented the court had full power.to order a sale for reinvestment under the statute; (2) that the same can be effected by private negotiations, subject to the approval of the court, when it is properly made to appear that the best interest of all the parties so require. This was the course pursued and directly approved in Lawson’s case, supra; (3) that ordinarily, and. on the facts of this record, the purchaser is not charged with duty of looking after the proper disposition of the purchase money, but when he has paid his bid into court, or to the parties authorized to receive it by the court’s decree, he is 'quit of further obligation concerning it.’ ” Pursuant to these statutory provisions and with the purpose, as stated, of procuring further assurance of the title in question, Mrs. Fisher and her children and the purchasers under the deed, and with the interest of the more remote remaindermen protected by guardian ad litem duly [600] appointed, filed tbeir petition showing the entire investments realized and held from the proceeds of the attempted sale, subjected such investments and their ownership and control of them to the orders and judgment of the court in the cause, allege and show that the sale was for the full value of the property and a highly advantageous one to all the parties in interest, and that the same was in fact necessary owing to the large and. accumulating claims against the estate in the way of taxes, assessments, etc., constituting liens upon the property. On these facts being established, and the court having jurisdiction of the parties and the property, we are of opinion that the judgment confirming and authorizing the sale and directing that the fund be properly safeguarded and invested is eminently proper, and has the effect of assuring title heretofore made by defendants to plaintiff. It may be well to note that under recent statutes amending C. S., 1744, Laws 1919, ehs. 17 and 259, a bond, in all cases, is required for assuring the safety of funds arising from such a sale. Stepis should be taken to modify the decree of Judge MeElroy in that yespect, the suggested amendment, however, in no way impairing its effect in further assurance of the title. We find no error in the present record, and judgment of the court that the defendant go -without day is Affirmed.