Coward v. . Meyers

6 S.E. 82, 99 N.C. 198

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

Smith’ C. J.,

(after stating the case). While in a complaint several separate and distinct causes of action or counts are set out, a demurrer may be entered to one or more and answer made to others. Ransom v. McClees, 64 N. C., 17. If the complaint contains but a statement of one cause of action, the demurrer must be to it as a unity or it 'will be disregarded, and in such cases it must be sustained or overruled as a whole and not in parts. State v. Young, 65 N. C., 579.

The judgment apparently leaves undisposed of the demand for damages and for relief against their being repeated, except as it may be involved in the ruling that the defendants are entitled to an estate in the land and to possession, both of which are consistent with a contingent remainder or executory devise over as the will may be con strued to operate, to the deceased father of the feme plaintiff. But we are constrained to regard the action of the Court as denying any relief under the complaint upon the facts stated.

We concur in the construction put .upon the clause of the will recited that it vests an estate in remainder to take effect at the death of the wife (Phoebe), and which then came into the possession of the defendant (Nancy) for her life — enlarged into a fee if the said Nancy at her decease should have issue.

No estate is given to such issue if coming into existence and surviving, but the effect is to defeat the limitation over to the son, William D., and transmute a life estate into an estate in fee in Nancy. The estate of the feme plaintiff is therefore contingent, and though Nancy has attained the age of fifty-five years, and in the course of nature cannot be expected to have children, the nature of the estate inherited by the feme plaintiff from her deceased father is unchanged and remains the same, dependent upon a contingency as before, yet 'it will be protected against unauthorized waste and injur}' to the damage of the inheritance.

In Gordon v. Lowther, 75 N. C., 193, the facts were similar, except that the limitation over and after the life estate, was to such children as the life tenant might have who attained the age of twenty-one years, and to the plaintiff if there were none such left; and the life tenant, as in our case, had passed the period of child-bearing, and it was decided that no recovery could be had for damages from waste already committed, but the plaintiff was entitled to protection against future waste and destruction by the exercise of the restraining power of the Court. This case is not distinguishable in principle from that before us and is decisive of the appeal.

There is error in sustaining the demurrer and refusing all relief, and the ruling must be reversed, so that, if allowed, the cause may proceed by answering the complaint, if the defendants shall be so advised and elect.

Error.