Justice v. Guion, 76 N.C. 442 (1877)

Jan. 1877 · Supreme Court of North Carolina

76 N.C. 442

FEREBEE JUSTICE and others v. JOHN A. GUION.

Contingent Remainder — Power of Court to Sell Land.

-A 'Court has no power to order a sale of land for the purpose of converting it into other property where it is limited in contingent remainder.

-;{Watsonr. Watson, 3 Jones Eq. 400; Williams v. Hassell, 74 N. 0. 434, cited and approved.)

Civil ActioN, tried at Eall Term, 1876, of Craves Superior Court, before Seymour, J.

• The action was brought to obtain an order to sell a certain house and lot in the City of Newbern. In 1853, this property was conveyed by one Sarah Tilman to a trustee “ for the benefit- of her niece (the plaintiff Eerebee Justice) for life, with remainder to the children of said Eerebee who should survive her to be equally divided between them, with a further provision that if any child, of said Eerebee should die before her leaving a child or children, such child or children should represent its or their parent in the division.”

The trustee named in the deed was H. T. G-uion now deceased, a brother of said Eerebee. The defendant is one of the brothers and one of the heirs at law of the deceased trustee, and was made a party to this suit to the end that an adjudication maybe had upon the questions involved.

Eerebee Justice who has been a widow for twenty years has three children, the youngest of whom is over the age of twenty-one, two of whom are married and have children and one of whom is unmarried.

The plaintiffs demand that the said land be sold and the proceeds re-invested in other propei’ty under the same trusts, and that H. C. Justice be appointed trustee.

The defendant demurred to the complaint and assigned as cause, that the class of persons to whom the land is limited in contingent remainder are not in esse, and not represented in.Court as parties.

His Honor granted an order to appoint a trustee and sustained the demurrer, from which judgment the plaintiffs appealed.

No counsel for plaintiffs.

Mr. A. G. Hubbard, for defendant.

Eaiecloth, J.

The petition alleges that a sale of the premises and re-investment of the proceeds would greatly promote the interests of the plaintiff's, and this allegation is admitted by the- demurrer of the defendant, who ' however denies the power Of the Court to'order a sale on the ground that the plaintiffs’ interest in the premises, except the life tenant, is contingent.. The .property was conveyed by deed to the defendant in truét for Mrs. -Justice ' during her life, and then to'be surrendered to her children who “ shall survive her and be living at her decease,” to be equally divided &c. The Court would gladly- aid the petitioners in promoting their interest, but it has not .the-power to do so._ The estate of the plaintiffs is a contingent remainder-and'the contingency arises out of the uncertainty of the persons who-will be able 16 take .'the estate at their mother’s decease. Some of the children now living may die without issue and others may be born before the life estate terminates. No one can now tell how these matters may then be. This rule has been long and well settled. ■ The leading text books are uniform on the subject. In our State the leading case is Watson v. Watson, 3 Jones Eq. 400, and the last case is Williams v. Hassell, 74 N. C. 434; and we can add nothing to the reasoning to be found in those authorities and do not consider it necessary to repeat it .in-this case. The demurrer müst be sustained.

No error.

Pee, Cubiam. Judgment affirmed*.