Morrell v. Building Management, Inc. , 241 N.C. 264 ( 1954 )

84 S.E.2d 910 (1954) 241 N.C. 264

William C. MORRELL
v.
BUILDING MANAGEMENT, Inc. and Eastern Motors, Inc.

No. 593.

Supreme Court of North Carolina.

December 15, 1954.

Kellum & Humphrey and McClelland & Burney, Wilmington, for plaintiff appellant.

Hogue & Hogue, Wilmington, for appellee Building Management, Inc.

BARNHILL, Chief Justice.

This cause was tried in the court below on the theory that the testator devised to his two sons an estate in remainder— either vested or contingent. The plaintiff contended that whatever estate was devised was contingent, as to each son, upon whether he survived the trust, and that since plaintiff's father died prior to the expiration of the trust, he took nothing under the will; that the words "or their heirs" created another class of devisees who should take the share of a son in the event the son should die prior to the date set for the distribution of the corpus of the estate. That is to say, he contended that the roll must be called as of that date to ascertain who are the devisees; that he is the sole heir of William R. Meeks, and that as such he became the owner of one-half of the corpus at the expiration of the trust.

On the other hand, the defendants contend that William R. Meeks, immediately upon the death of the testator, was vested with title to one-half of the corpus in remainder in fee, subject only to the terms of the trust which merely postponed the enjoyment thereof.

The parties, both in their briefs and oral arguments, pursue the appeal to this Court upon the same assumption.

But the will creates no prior estate, less than a fee, with limitation over to the two sons such as would make the estate devised to them an estate in remainder, either vested or contingent. Hence the law of remainders and future interests has no application here.

"Where an active trust is created for the use and benefit of named beneficiaries, or there is a gift of all or a part of the income therefrom to the beneficiaries, pending final division, or there is other language in the will evidencing a clear intent that a beneficial interest in the estate shall vest in the parties named immediately upon the death of the testator, with directions to the trustees to divide and deliver the estate at a stated time in the future, the interest vests immediately upon the death of the testator and the date of division merely postpones the complete enjoyment thereof." Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713, 717. This rule, to be followed in the construction of wills, is now settled law in this jurisdiction. Williams v. Smith, 57 N.C. 254; Fuller v. Fuller, 58 N.C. 223; Coddington v. Stone, 217 N.C. 714, 9 S.E.2d 420; Robinson v. Robinson, 227 N.C. 155, 41 S.E.2d 282; McQueen v. Branch Banking & Trust Co., 234 N.C. 737, 68 S.E.2d 831; Jackson v. Langley, 234 N.C. 243, 66 S.E.2d 899; Weill v. Weill, 212 N.C. 764, 194 S.E. 462; Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341; Pridgen v. Tyson, 234 N.C. 199, 66 S.E.2d 682; see also 57 A.J. 807; 69 C.J. 595; 2 Simes Future Interests 103.

The will under consideration creates no contingent future interest. The beneficiaries of the trust are named in the will and were persons in being at the time the will took effect and the estate was created. They were, under the terms of the will, to have and receive the income from the property monthly, and upon the termination of the trust, they were to receive their respective shares, freed of the trust provisions. Thus there is no postponement of the vesting of their title to the property. Instead, title thereto vested in them immediately upon the death of the testator. The trust merely served to postpone their right to the full enjoyment of the estate devised until its termination.

Even if we should conclude that in view of the fact the sons were to receive only the income from the estate during the life of the trust, neither son could convey a valid and marketable title to his share of the property during the life of the trust—and we do not so conclude—this would not affect the result. The deed executed by William R. Meeks would operate as an estoppel against him and those claiming by or through him by deed, will, or inheritance.

When a grantor conveys land to which he has no title or a defective title at the time of the conveyance, but who thereafter acquires title to the property, his after-acquired title "feeds the estoppel" and, by operation of law, vests the title thus acquired in the grantee. Croom v. Cornelius, 219 N.C. 761, 14 S.E.2d 799; Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485; Woody v. Cates, 213 N.C. 792, 197 S.E. 561; Bell v. Adams, 81 N.C. 118; Benick v. Bowman, 56 N.C. 314.

The judgment entered in the court below will be modified by striking out the words "in remainder" as used in the court's conclusion of law therein contained so that it will read "* * * that at the death of Felix J. Meeks, Sr., William R. Meeks, Sr. became seized of a vested and transmittable estate in fee simple to a one-half undivided interest in the locus in quo, the complete enjoyment of possession of which was postponed until the termination of the trust estate, there being no condition precedent which prevented the immediate vesting of the estate upon the death of Felix J. Meeks, Sr." As so modified said judgment is affirmed.

Modified and affirmed.