Houck v. Stephens

MARTIN, Judge. Appellant Patrick Stephens is dissatisfied with the trial judge’s construction of the deed. He first takes the position that the language “to Emer J. Stephens and her children after her” conveys to Emma J. Stephens a life estate with a contingent remainder to her children so that only those children who can answer the roll upon the death of Emma Stephens acquire any interest in the lands. This is so, he argues, because the words “after her” limit the remainder interest to those surviving the life tenant. [610] Appellant’s contention relies too heavily on the words “after her.” They are the only words which manifest an intent to convey a life estate to Emma J. Stephens with a remainder to her children. However, appellant would have them perform the additional task of imposing a requirement of survivorship upon the remaindermen. The most that can be said in favor of appellant’s position is that from the language of the deed it is unclear whether the grantor intended to convey a vested or contingent remainder to the children of Emma J. Stephens. This being so, the trial judge properly construed the deed as conveying a vested remainder to the children. “In 24 A. and E. Enc., 394, the author says: ‘Where a remainder is given to a class, as, for instance, the children of a designated person, it will be held a vested remainder unless the terms of the instrument creating it clearly show that the ascertainment of the individuals composing the class is to be postponed until the determination of the preceding estate. But such a remainder, though vested, will open to let in members of the class who may be born during the continuance of the preceding estate.’ ” Powell v. Powell, 168 N.C. 561, 84 S.E. 860 (1915). Failing in his contention that the remainder interest was contingent, appellant resourcefully advances two other interpretations of the deed. Neither contains merit. Judge Ervin properly construed the deed as conveying a life estate to Emma J. Stephens with a vested remainder in her children Fred Stephens, Rose Stephens, Ann S. Hudson, Patrick Stephens, and Theodore Stephens. Affirmed. Judges Clark and Arnold concur.