Robertson v. . Robertson

130 S.E. 166, 190 N.C. 558, 1925 N.C. LEXIS 122

• Court: Supreme Court of North Carolina
• Decided: November 25, 1925
• Status: Published

Opinion

Stacy, C. J.

This is an action, brought under C. S., 1743, to quiet title and to remove a cloud therefrom, which, it is alleged, arises out of a claim by the defendants that they have a contingent remainder interest in the property, and to which plaintiff asserts a full and complete fee-simple title. The primary question involved is the proper construction of the deeds held by the plaintiff to the locus in quo.

On 26 October, 1871, Catherine R. Owen, who owned a lot in the town of Hillsboro, Orange County, conveyed the same, by deed properly executed and registered, to David A. Robertson, for the following recited purposes:

“1. For the sole and separate use of the said Mrs. Catherine R. Owen for and during her natural life.

“2. For the said David A. Robertson and Lucy Robertson, his wife, or the survivor, of them, for and during the term of his or her natural life.

“3.- For the child or children of said Lucy Robertson that may survive their father or mother, or the issue of such and their heirs forever.

“4. On failure of issue of said Lucy Robertson then to William Davies, the grandson of said Catherine R. Owen, and his heirs forever.”

David A. Robertson died 12 January, 1883, leaving him surviving his widow, Lucy H. Robertson, and two children by the said Lucy H. Robert son, to wit, Charles H. Robertson, then 11 years of age, the present plaintiff herein, and David W. Robertson, then 5 years old, whose children are the appellants in the present case.

After the death of David A. Robertson, Catherine R. Owen and Mrs. Lucy H. Robertson instituted an action in the Superior Court of Orange County at the Fall Term, 1883, in which action said Charles H. Robertson, David W. Robertson and William Davies, all infants at that time, were represented by guardian or next friend. The purpose of said action was to obtain an order for the sale of the lot in Hillsboro, and for the reinvestment of the funds derived therefrom, in a lot in Greensboro, Guilford County. This order was duly entered containing the direction that the deed to the property in Greensboro be taken “for the same persons with the same limitations as those contained in the deed from Catherine R. Owen, dated 26 October, 1871 (with the exception of David A. Robertson, who died on 12 January, 1883).” Supposedly agreeable with the provisions of this order, the deed to the lot in Greensboro, the locus in quo, was executed and duly registered, but with the following limitations incorporated therein:

“1. For the sole and separate use of Mrs. Catherine R. Owen for and during her natural life.

“2. For the said Lucy H. Robertson for and during the term of her natural life.

“3. For the- child or children of the said Lucy Robertson, that may survive their mother or the issue of such and their heirs forever.

“4. On failure of issue of said Lucy H. Robertson then to William Davies, the grandson of said Catherine R. Gwen, and his heirs forever.”

This deed, however, recites the whole history of the trust, sets out its initial terms, and contains a declaration that it is intended to preserve and to perpetuate the original trust, established in the deed from Catherine R. Owen to David A. Robertson, bearing date 26 October, 1871, and referred to above.

Catherine R. Owen died sometime prior to 1902. William Davies and David W. Robertson, each, after obtaining his majority, by deed duly executed and registered, conveyed all of his interest in the locus in quo to Mrs. Lucy H. Robertson. Thereafter, Mrs. Lucy H. Robertson conveyed all her interest in said lot to the plaintiff.

Mrs. Lucy H. Robertson is still living; she has not remarried since the death of her husband, David A. Robertson, in 1883, and she is now 75 years of age.

The prayer of the complaint is that the plaintiff be declared the absolute owner of an indefeasible fee-simple title to the locus in quo, free and clear from any claim, interest or estate, present or future, of the defendants, or any of them.

There being no controversy as to tbe facts, bis Honor rendered judgment on tbe pleadings in favor of tbe plaintiff in accordance with, tbe prayer of bis complaint. Tbe children of David W. Eobertson appeal, contending that they have a contingent interest in said lot of land which would vest immediately upon tbe death of their father during the lifetime, or before the death, of their grandmother, Mrs. Lucy H. Eobertson.

If we look only at tbe limitations contained in tbe deed, executed pursuant to the judgment of the Superior Court, directing a sale of the Hillsboro property and a reinvestment in tbe Greensboro property, tbe position of tbe appellants, undoubtedly has some show of merit, but it is conceded that the purpose of this deed was to preserve and to perpetuate tbe original trust established by tbe deed from Catherine E. Owen to David A. Eobertson, tbe terms of which are fully set out in the deed conveying tbe Greensboro property. Tbe rights of the parties, therefore, are to be determined by tbe provisions of this original deed, tbe complaint being sufficient, under our liberal practice, to warrant a reformation, if need be, of tbe latter deed, admittedly executed in furtherance of tbe first and only- design or original trust. But no reformation would seem to be needed as the limitations incorporated therein were but the draftsman’s interpretation of tbe trust created by tbe first deed, after eliminating from tbe second deed the name of David A. Eobertson, who was dead at the time of its execution. And while this interpretation of tbe draftsman or tbe parties appears to be slightly in error, nevertheless, viewing tbe instrument in its entirety, a position approved in Triplett v. Williams, 149 N. C., 394, and Bagwell v. Hines, 187 N. C., 690, we think it is clear that its meaning and intent was to preserve and to carry out tbe one original trust and that it should be construed so as to effectuate this purpose. Such was tbe direction of tbe judgment under which it was taken.

We then come to a consideration of tbe limitations contained in tbe original deed of 26 October, 1871, from Catherine E. Owen to David A. Eobertson, tbe latter deed, conveying the locus in quo, being only a continuation of the trust created by the first deed. The appellants, who are grandchildren of Mrs. Lucy H. and David A. Eobertson, claim a contingent interest in the property under tbe third or following clause in the deed: “For tbe child or children of said Lucy Eobertson that may survive their father or mother, or tbe issue of such and their heirs forever.” Tbe plaintiff, on tbe other band, contends that immediately upon tbe death of David A. Eobertson, tbe children of the said Lucy Eobertson and David A. Eobertson, who survived their father, took a vested remainder in tbe property, and that tbe deeds of said children are sufficient to convey a full and complete fee-simple title to the locus in quo. His Honor beld witb tbeir view, and rendered judgment accordingly. We tbink tbe record supports tbe ruling.

Tbe appeal presents but a single question of law, and it is tbis: Did tbe contingent interests of Mrs. Lucy H. Robertson’s children become vested upon tbe death of tbeir father, or will such interests become vested, so far as the children are concerned, only upon tbeir surviving tbeir mother also ? In other words, is tbe word “or,” appearing in clause three, between tbe words “father” and “mother,” to be construed as meaning “or” or “and”? Considering all tbe purposes of tbe trust tbe pertinent and explanatory facts, and tbe early vesting of estates, which ■the law favors, to tbe end that property may be kept in tbe channels of commerce (Radford v. Rose, 178 N. C., 288; Hilliard v. Kearney, 45 N. C., 221), we are of opinion that tbe word “or” should be beld to mean “or,” and not “and,” in tbe present deed. McDonald v. Howe, 178 N. C., 257; Dunn v. Hines, 164 N. C., 113; Galloway v. Carter, 100 N. C., 111, and cases there cited.

It was tbe manifest purpose and intent of tbe grantor that tbe remainder interests of tbe children should become vested upon tbe happening of only one of tbe contingencies mentioned, to wit, tbeir survival of either tbeir father or tbeir mother, and not necessarily tbeir survival of both. Springs v. Hopkins, 171 N. C., 486; Price v. Johnson, 90 N. C., 592; Biddle v. Hoyt, 54 N. C., 160.

True, tbe policy of tbe law is to construe tbe disjunctive or copula- - tively, or change it to and, wherever it is necessary to do so in order to carry out tbe intention of tbe maker or tbe parties to an instrument, and for tbe further purpose of accelerating tbe vesting of estates, when tbis can fairly be done. But we are aware of no case where such change has been made contrary to tbe principle of early vesting, unless tbe language of tbe instrument impelled tbe interpretation. Christopher v. Wilson, 188 N. C., 757; Ham v. Ham, 168 N. C., 486, and cases there cited. Tbe present case calls for no change of tbe disjunctive or, in clause three as mentioned above, either for tbe purpose of effectuating tbe grantor’s intent or to uphold tbe rule which favors tbe early vesting of estates.

Tbe remote possibility of further issue by a second marriage, who might fall in tbe class of “children of said Lucy Robertson that may survive tbeir father or mother,” need not be considered so far as tbe alleged interests of tbe appellants are concerned.

On tbe record, we tbink tbe judgment in favor of tbe plaintiff should be upheld.

Affirmed.