Beam v. . Gilkey

35 S.E.2d 641, 225 N.C. 520, 1945 N.C. LEXIS 366

• Court: Supreme Court of North Carolina
• Decided: October 31, 1945
• Status: Published

Opinion

Stacy, C. J.

We have here motions in the cause to vacate order of sale and judgment of confirmation entered in a proceeding brought to sell land discharged of contingent interests. Ex Parte Dodd, 62 N. C., 97; McIntosh on Procedure, 1071. The life tenant, her children as remaindermen, and a grandchild were made parties to the proceeding.

The complaint contains allegation of a present vested interest in the property, but none of any contingent interest which is sought to be discharged by a sale. However, looking at the will of G. W. Seagle, to which reference is made in the complaint, it appears that the property was devised to the plaintiff, Sallie E. Gilkey, “for and during the term of her natural life, remainder in fee to the children of the said Sallie E. Gilkey,” with later and subsequent provision that in case Sallie E. Gilkey should die “leaving no child or children, or child of any such children,” the property is to go to her sister, Evelyn E. Halliburton and her children.

The plaintiff, therefore, acquired a life estate in the property under her father’s will. McCallum v. McCallum, 167 N. C., 310, 83 S. E., 250. The remainder in fee vested immediately in her children who were living at-the death of the testator, subject to open and make room for any after-born child or children, with ultimate limitation over in case the life tenant should die leaving no child or chldren or child of any such children. Lumber Co. v. Herrington, 183 N. C., 85, 110 S. E., 656; Powell v. Powell, 168 N. C., 561, 84 S. E., 860; Walicer v. Johnston, 70 N. C., 576; Chambers v. Payne, 59 N. C., 276; Mason v. White, 53 N. C., 421; 31 C. I. S., 92; 33 Am. Jur., 543 and 595. “The remainder is vested in the children of the life tenant who are in esse, and their interest is subject only to a contingency affecting the quantum of their interest, but not the quality of the estate taken by them.” Deem v. Miller, 303 Ill., 240, 135 N. E., 396, 25 A. L. R., 766. Nor was the vested character of the remainder affected by the direction that the property be equally divided among the children of the life tenant, “when they become of lawful age, and after the death of their mother.” Vanhook v. Vanhook, 21 N. C., 589; Johnson v. Baker, 7 N. C., 318; 33 Am. Jur., 574. The suggested restraint on alienation is of course of no avail. It is void. Williams v. McPherson, 216 N. C., 565, 5 S. E. (2d), 830; Trust Co. v. Nicholson, 162 N. C., 257, 78 S. E., 152; Wool v. Fleetwood, 136 N. C., 460, 48 S. E., 758, 67 L. R. A., 444.

It is to be noted that the children in esse of the life tenant, remainder-men in interest, came in by counsel and joined in the prayer for relief. Hence, for all practical purposes, this made it an ex parte proceeding, with the life tenant and her children, first in remainder, asking for a sale of the property. The court of equity was thereupon empowered to order a sale upon application of the life tenant and her children in esse who represented this entire class of remaindermen, including children in posse, and to conclude all of the same class then before the court. Yancey’s Case, 124 N. C., 151, 32 S. E., 491; 70 Am. St. Rep., 577; Branch v. Griffin, 99 N. C., 173, 5 S. E., 393, 398; Irvin v. Clark, 98 N. C., 437, 4 S. E., 30; Williams v. Hassell, 74 N. C., 434. See Perry v. Bassenger, 219 N. C., 838, 15 S. E. (2d), 365; Anderson v. Wilkins, 142 N. C., 153, 55 S. E., 272. It was likewise in the discretion of the court to determine whether the sale should be private or public. Thompson v. Rospigliosi, 162 N. C., 145, 77 S. E., 113.

If it be conceded that the order of court did not discharge the contingent interest of Evelyn E. Halliburton and her children in the prop erty, because they were not made parties to tbe proceeding, Butler v. Winston, 223 N. C., 421, 27 S. E. (2d), 124, this circumstance now appears unimportant as tbe interest bas been extinguished by subsequent events. Tbe contingency upon which this ulterior limitation was to take effect never happened. The life tenant died leaving children and a grandchild.

It is the position of movents, however, that 'all persons “who may in any contingency become interested in said land” (C. S., 1744) were necessary parties to the proceeding, and that the failure to bring in Evelyn E. Halliburton and her children was a fatal omission. Hutchison v. Hutchison, 126 N. C., 671, 36 S. E., 149; Whitesides v. Cooper, 115 N. C., 570, 20 S. E., 295; Watson v. U. S., 34 F. Supp., 777. This contention overlooks the fact that the proceeding was within the general equity jurisdiction of the court, Branch v. Griffin, supra; Ex Parte Dodd, supra, and it was not confined to the provisions of C. S., 1744 and 1745, the statutes then in effect relating to the sale of property affected with contingent interests. Butler v. Winston, supra; Lide v. Wells, 190 N. C., 37, 128 S. E., 477; Pendleton v. Williams, 175 N. C., 248, 95 S. E., 500; Smith v. Witter, 174 N. C., 616, 94 S. E., 402; Bullock v. Oil Co., 165 N. C., 63, 80 S. E., 972; Trust Co. v. Nicholson, supra; Springs v. Scott, 132 N. C., 548, 44 S. E., 116. The proceeding is not so defective as to render it void. Smith v. Gudger, 133 N. C., 627, 45 S. E., 955; Hodges v. Lipscomb, 133 N. C., 199, 45 S. E., 556. When the purchaser paid his bid into court, or to its officer duly authorized to receive it, he was relieved of any further responsibility in connection with the interest then being sold. Perry v. Bassenger, supra; McLean v. Caldwell, 178 N. C., 424, 100 S. E., 888; Dawson v. Wood, 177 N. C., 158, 98 S. E., 459. The cases of Hutchison v. Hutchison, supra, and Whitesides v. Cooper, supra, cited by movents, are inapposite, or uncon-trolling, as they deal with contingent, rather than vested, interests first in remainder after the expiration of the life estate. See Middleton v. Rigsbee, 179 N. C., 437, 102 S. E., 780.

The plaintiff’s grandson, J. Cecil Grilkey, Jr., took nothing under his great grandfather’s will. Lee v. Baird, 132 N. C., 755, 44 S. E., 605. His interest in the property, if any he had, was a possible inheritance from his father. Allen v. Parker, 187 N. C., 376, 121 S. E., 665; 69 C. J., 641; 33 Am; Jur., 543. He had no testamentary interest to foreclose and his presence in the suit was mere surplusage. Hence, the irregularity of entering a consent judgment against a minor without investigation and approval of the court, Wyatt v. Berry, 205 N. C., 118, 170 S. E., 131, may be disregarded. The minor had no interest to protect then and he has no interest in the property now.

Tbe exception addressed to tbe adjudication of respondent’s title as being in excess of tbe motions, or beyond tbe inquiry, is not discussed in appellants’ brief. It is therefore deemed abandoned. Troitino v. Goodman, ante, 406. “Exceptions in tbe record not set out in appellant’s brief, or in support of wbicb no reason or argument is stated or authority cited, will be taken as abandoned by him.” Rule 28, Rules of Practice, 221 N. C., 562.

On tbe bearing of tbe motions, tbe court found that’ tbe defendants appearing of record bad been duly served with summons; that they filed answer through counsel and joined in tbe request for an order of sale; that full value was paid for tbe property at tbe time, and that tbe purchaser has since erected valuable improvements thereon.

On these findings, and in tbe absence of compelling reasons to tbe contrary, we cannot say there was error in refusing to vacate the order of sale and judgment of confirmation entered at tbe September Term, 1922, McDowell Superior Court. Ipock v. Bank, 206 N. C., 191, 175 S. E., 127.

Affirmed.

WiNBORNE, J., took no part in tbe consideration or decision of this case.