Pelham v. Taylor, 54 N.C. 121, 1 Jones Eq. 121 (1853)

Dec. 1853 · Supreme Court of North Carolina

54 N.C. 121, 1 Jones Eq. 121

ROBERT T. PELHAM against RICHARD P. TAYLOR, EX’R.

Where property is given to one, with the absolute power of disposing oí file same, wish a limitation over in the event of the first laker dying in-féstale, na without children, o:.i without disposing of tho same, the cx-ejutor-has no right to demand a forth riming bond for the property, to meet such a contingency.

Cause removed hy consent of parties^ from tho Court of Equity, of GramiJJo county, at the Spring Term, 1858.

Tho bill was hied in September 1852, and states, in substance, that Hebert Taylor tl'ed in May 18-J-7, having duly executed his last will and testa’.neat, leaving him surviving four children, cno of whom is the defendant Richard P. Taylor, and two graud-cliildron, vie:: Robert T. Pelham, the complainant, and his sister Susan, who aro the children of a- deceased daughter of Robert Taylor.

Robert Taylor bequeathed to his wife, Mildred Taylor, an annuity of twelve hundred dollars, chargeable upon liis whole estate, and to bo paid semi-annually. After specific bequests to Robert T. and Fnsan Pelham, he directed that the residue of his estate should bo divided between his four children, and Robert T. Pelham and his sister Susan, so that the shares of tho two last should, together, equal the share of one of his four children, i le further directed, that their shares should be held in cross-remainders, in case they should die without issue, them surviving; and, in case the survivor should die without issue and intestate, Ms share, as well as .any accumulation thereon, should go to his other .children or grand-children, the latter taking by stocks, declaring that it was not his intention to prevent such survivor from disposing of the same as he or she might think proper. The limitation over was itself subject to a limitation in favor of the husband or wife of the survivor, who was to receive such portion of their shares, whether original or accumulated, as he or she would have been entitled to at law.

In 1847, Richard P. Taylor and others were appointed executors of Robert Taylor, and, about the same time, the said Richard was appointed .guardian for the complainant and his sister Susan, they being under age. The executors agreed to set apart a fund sufficient to raise two hundred dollars annually, towards the payment of the annuity, and to divide the rest of the estate, debts, &c., being paid, among the several legatees, and that each legatee should pay, semiannually, a rateable part of the remaining' portion of the annuity.

Richard P. Taylor, as guardian to Robert T. and Susan Pelham, paid semi-annually f 100 towards said annuity, that being their rateable portion, and charged himself with the same, in his account as guardian.

In 1848, Susan died under age, without issue, and never having been married. Her estate becoming vested, by the limitation in Robert, was transferred to his account by his guardian.

Since that time, RobertT. Pelham has attained the ago of twenty-one, and has called upon Richard P. Taylor to come to a settlement, which ho refuses to do, unless he be allowed to retain in his hands sufficient to raise the rateable part of the annuity, or the plaintiff should otherwise sufficiently provide for its payment. The defendant also doubts whether it be not his duty, as executor, to require security for the forthcoming of the property in case of the death of Robert T. Pelham without -issue and intestate..

The answer admitted all the statements in the hill to he correct.

Set for hearing on the hill and answer, and removed by consent.

No counsel for the plaintiff.

Lanier, for the defendant.

PeARSoh, <J.

Two questions are presente^:

1st. There is no doubt, that, in pursuance of the arrangement, by which the property came into the hands of the defendant, -as guardian, the plaintiff is bound to secure tho semi-annual payment of $200 to the widow of the testator during her life, that being his rateable part of the annuity not otherwise secured. This ho may do, either by bond with personal security, or by a conveyance of a part of the property sufficient for that purpose, -as may be arranged between the parties.

2d. The plaintiff, as survivor, is entitled to the share given to himself and his sister, together with any accumulation -thereGn, ¡and takes the absolute property therein, with the right to dispose of it as he may see proper, by will or otherwise, subject only to a limitation over to the children and grand-children, (who may be the children of any deceased child, and are to take by stocks <tr per stirpes) of the testator, in the event of his dying intestate, and without leaving a .child, living at his death, which limitation over is itself subject to a limitation to the wife of the plaintiff^if he should marry, of such share as she would be entitled to by law, -in the event of his dying intestate, leaving a widow.

When the case was .opened, a-very interesting question was suggested, that is: Is "not the limitation over void, as being repugnant to the absolute right of disposition. The •case was held under an advisari, to consider of this question,. Wo are Satisfied, ,the question is not presented .as the ftas.e now stands, and therefore are not at liberty to decide it; for,, suppose tlio limitation over is not void, it is very clear that the plaintiff is entitled to have the property delivered over to him, to be disposed of as he may think proper, without giving security for its forthcoming.

If property be given to one for life, with a remainder over, the executor has no right to require a bond for its forthcofifing. That must be obtained at the instance of the remainder-man, if there be good ground to fear that the property will be destroyed or taken to parts unknown; a, fortiori, the executor cannot require a bond, wdiere the property is given, with the absolute power of disposition. The only contingency in which the question, as to the repugnancy of the limitation over can ever be presented, is the death of the plaintiff intestate, without a child and without having disposed of the property. Should all of those doubtful events happen, and the plaintiff luwo creditors, who have acquired no specific lien on the property, they may raise the question as to the validity of the limitation over. Wo will uot speculate on such remote possibilities.

The plaintiff is entitled to an account,'if he desires it. His rights will be declared as above. It is usual in suclv casos to decree the costs to bo paid out of the fund, but the defendant’s grounds for refusing to come to an account, and deliver over the property, aro so untenable, particularly as no difficulty was made in regard to securing the rateable part of the annuities, that wo do not allow the defendant his costs.

D ecree accordingly.