Davis v. Davis , 3 N.C. App. 536 ( 1969 )

165 S.E.2d 553 (1969) 3 N.C. App. 536

James Percy DAVIS et al.
v.
Rexford DAVIS and Ronnie Davis, minors, without general or testamentary guardian in this State; Wachovia Bank & Trust Company, Executor of the Estate of Elizabeth Barnes Miller, Deceased, and The Primitive Baptist Church of Orlando, Florida; Myrtle Davis and Dorothy Davis.

No. 688SC321.

Court of Appeals of North Carolina.

February 5, 1969.

Sasser, Duke & Brown by J. Thomas Brown, Jr., Goldsboro, for plaintiff appellants.

Braswell & Strickland by David M. Rouse, Goldsboro, for Rexford Davis and Ronnie Davis, minor defendants who join appellants.

Taylor, Allen, Warren & Kerr by W. R. Taylor, Goldsboro, for defendant appellees.

MORRIS, Judge.

The will of John A. Barnes is clear and unambiguous. There is a devise to Lizzie Barnes for life, remainder to her children or grandchildren; and, if she should die leaving no child or issue of such, then to Christian Davis and Melissa Aycock. There is no controversy as to the type of remainder held by Christian Davis and Melissa Aycock; it is agreed that they held a contingent remainder. However, the appellants argue that Christian Davis, prior to the death of Elizabeth Barnes Miller without issue, had no transmissible interest in the property, and her deed was in fact a nullity and did not pass any interest to Elizabeth Barnes Miller. Therefore, the devise to the Primitive Baptist Church of Orlando, Florida, had no effect.

As we view the matter, the validity of the plaintiffs' claim to the property hinges upon this question—may an ascertained remainderman, whose interest will take effect only upon the happening of an event uncertain, convey whatever interest he has prior to the occurrence of this uncertain event? If this question is answered in the affirmative, then the heirs of Christian Davis, the plaintiffs and minor defendants, have no interest in this property because of the deed executed on 17 January 1952.

In Fortescue v. Satterthwaite, 23 N.C. 566, T devised property to N, S, and J. It was provided that if N, S, or J should die without issue, then his property was to go to the survivors. J first died, then N died without issue, leaving S as the survivor. Prior to the death of N, S, who is the plaintiff, and her husband had conveyed the interest of S in the property to N, the defendant. Speaking on the right of the defendant to introduce this bill of sale into evidence, the Court says:

"It is true, as stated in the argument, that a possibility cannot be transferred at law. But by a possibility we mean such an interest, or the chance of succession, which an heir apparent has in his ancestor's estate; which a next of kin has of coming in for a part of his kinsman's estate; which a relation has of having a legacy left him, etc. Such interests as these, we conceive, are the true technical possibilities of the common law. 2 P. Wil., 181; Whitfield v. Faucet, 1 Ves., 381; Atherley on Mar.Set., 57. But executory devises are not considered as mere possibilities, but as certain interests and estates. Gurnel v. Wood, Willes, 211; Jones v. Roe, 3 Term, 93. In the last case the judges seem to have considered it as settled that contingent interests, such as executory devises to persons who were certain, were assignable. They may be assigned (says Atherley, p. 55) both in real and personal estate, and by any mode of conveyance by which they might be transferred had they been vested remainders."

In Bodenhamer v. Welch, 89 N.C. 78, the testator devised property to his wife for life and after her death, to his children then living. One of the testator's sons who survived the testator's wife had filed a petition in bankruptcy, and his interest had been assigned to the defendant. The question before the Court was the validity of this assignment. Speaking of the son's interest, the Court said:

"His interest was contingent, depending upon his surviving his mother. It was not as contended, a mere possibility, but an estate in the land, an executory devise, or rather a contingent remainder, which is a certain interest. A possibility is defined to be ``an uncertain thing' which may happen, or a contingent interest in real or personal estate. Possibilities are divided into, first, a possibility coupled with an interest: this may of course be sold, assigned, transmitted or devised; such a possibility occurs in executory devises and in contingent, springing or executory uses; and secondly, a bare possibility of hope of succession; this is the case of an heir apparent during the life of his ancestor; it is evident he has no right he can assign, devise or release. 2 Bouvier Law Dict., 253.

That executory devises, contingent remainders and other possibilities coupled with an interest may be assigned, is maintained in Jones v. Roe, 3 Dall. & E., 88; Higden v. Williamson, 3 P.Wms., 132; 2 Story, 630; Comegys v. Vasse, 1 Pat., 193 [7 L. Ed. 108], 7 Texas, 25; Fortescue v. Satterthwite [Satterthwaite], 23 N.C., 566; and 3 Pars.Cont., 475; Burrill Assign., 72; Shep.Touch., 239."

In Watson v. Smith, 110 N.C. 6, 14 S.E. 640, the devise very closely resembled that involved in the present case. The Court said the question presented was "* * * whether the interests of such devisees are assignable by deed, either in law or equity. * * * What interests did these last-named persons [the same as Christian Davis and Melissa Aycock in the present case] take under the will?" The Court first lent itself to the question of what type of remainder was involved and concluded that this was a contingent remainder. Then the Court held that the interest may be assigned in equity.

"Taking the limitation to be either a contingent remainder or an executory devise, we are of opinion that the interest of George Watson and others [the same as the interest of Christian Davis and Melissa Aycock] was at least ``a possibility coupled with an interest' * * * and its assignment for a valuable consideration and free from fraud or imposition, while void in law, will be upheld in equity. * * * In Bodenhamer v. Welch, 89 N.C., 78, it is held that such an interest may be assigned (we suppose an equitable assignment is meant), and we are of the same opinion; but even if this were not so, it is clear that the assignment in question, if treated as an executory contract, may be specifically enforced against the assignors and their heirs, should the life-tenant die without issue * * *

The plaintiff, the life-tenant, has by the assignment acquired an equitable right to the interest of the said remainder-men. He is a single gentleman, about 80 years of age, and the defendant is willing to take the risk of his marrying and leaving issue, provided the assignment of the remainder-men is effectual to bind them and their heirs. We have seen that such is its effect * * *" (Emphasis added.)

In Kornegay v. Miller, 137 N.C. 659, 50 S.E. 315, testator devised land to A & J in trust. If either died without issue, his share was to pass to the survivor, and if both died without issue, then the income was to go to the testator's wife. The Court held that the contingent interest of the testator's wife could be conveyed by her deed. The Court held that the assignment may be specifically enforced against the assignors and their heirs. Although not necessary to the holding of the case (that a contingent remainderman may convey his interest to the detriment of his heirs), the Court goes on to say that the assignee holds a present interest "* * * not existent at law, but thoroughly recognized in equity; and to that title equity stands ready to give full effect the instant the property comes into being * * * instantly upon the acquisition of the thing, the assignor holds it in trust for the assignee, whose title requires no act on his part to perfect it. The assignee, therefore, has an equitable title from the time of the assignment."

In Hobgood v. Hobgood, 169 N.C. 485, 86 S.E. 189, our Supreme Court again held that a contingent interest could be conveyed stating, "* * * our decisions on the subject being to the effect that, when the holders of a contingent estate are specified and known, they may assign and convey it, and, in the absence of fraud or imposition, when such a deed is made, it will conclude all who must claim under the grantors, even though the conveyance is without warranty or any valuable consideration moving between the parties."

Malloy v. Acheson, 179 N.C. 90, 101 S.E. 606, and Seawell v. Cheshire, 241 N.C. 629, 86 S.E.2d 256, are other cases in which our Supreme Court has held that a contingent remainder may be assigned where the ultimate taker is ascertained.

In the present case, Christian Davis was to take only upon the death of the life tenant without issue. The remainder to Christian Davis was contingent not because of the uncertainty of the person who was to take, but because of the uncertainty of the event. The cases cited above establish that an assignment by such a remainderman is valid and is binding upon the heirs of the assignor. This being true, the conveyance by Christian Davis to Elizabeth Barnes Miller cut off any interest the heirs of Christian Davis may have had in the property in question. The judgment below is

Affirmed.

MALLARD, C. J., and CAMPBELL, J., concur.