Gordon v. . Lowther , 75 N.C. 193 ( 1876 )

The testator "lends" to his daughter Martha (now Mrs. Lowther) certain lands described in his statement, and adds: "Should my said daughter have no child or children to live to be twenty-one years old, my will and desire is that my grandson John Gordon, son of George B. Gordon, shall have it after her death; if she should (195) have child or children to arrive at the above age, my desire is that they shall have it after her death."

This makes the defendant Martha Lowther a tenant for life, with a contingent remainder in fee to such child or children as she may have, who live to the age of twenty-one years, with an executory devise over to the plaintiff in the event that no child of Martha Lowther lives to the age of twenty-one years.

The allegations of the complaint are that the defendants, at various times from 1863 to 1875, have sold timber trees from the land and have torn down buildings, and have allowed the farm to go to ruin, thereby committing voluntary and allowing permissive waste, and that the defendants are now, at the time of commencing this action, still committing waste by selling timber trees from the land, and that the injury to the estate of inheritance is equal to the value of the life estate.

And, therefore, the plaintiff brings this action:

First, to restrain waste; second, to recover damages for the waste already committed. The defendants demur.

While owners of executory bequests and other contingent interests cannot recover damages for waste already committed, they are entitled to have their interests protected from threatened waste or destruction by injunctive relief.

This is clear both upon principle and authority. Braswell v. Morehead,45 N.C. 26; Douthit v. Bodenhammer, 57 N.C. 444; Watson v. Watson,56 N.C. 400.

Inasmuch as Martha Lowther is now fifty-two years of age, has been married twelve years and has never had a child, and admits by the demurrer the waste charged in the complaint, this would seem to be a very proper case for such relief.

PER CURIAM. Affirmed.

Cited: Cowand v. Meyers, 99 N.C. 201; Jones v. Britton, 102 N.C. 170,195, 205; Farabow v. Green, 108 N.C. 343; Peterson v. Ferrell, 127 N.C. 170;Coffin v. Harris, 141 N.C. 713.

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