Pridgen v. Tyson

66 S.E.2d 682 (1951) 234 N.C. 199

PRIDGEN
v.
TYSON et al.

No. 94.

Supreme Court of North Carolina.

September 26, 1951.

O. B. Moss, Spring Hope, and Claude C. Abernathy, Nashville, for defendants, appellants.

Lucas & Rand and Z. Hardy Rose, all of Wilson, for plaintiff, appellee.

DENNY, Justice.

It is conceded that the plaintiff, Thomas W. Pridgen, took only a life estate in the devised premises, under the will of Thomas M. Tyson, and that all persons claiming any interest in the estate are parties to the action. The defendants contend, however, that the male children of the testator took only a contingent interest conditioned upon their surviving Thomas W. Pridgen, the plaintiff, and that in order to ascertain the ultimate takers under the will, the roll must be called at the death of Thomas W. Pridgen, citing Wachovia Bank & Trust Co., v. Waddell, 234 N.C. 34, 65 S.E.2d 317; Carter v. Kempton, 233 N.C. 1, 62 S.E.2d 713; House v. House, 231 N.C. 218, 56 S.E.2d 695; Mercer v. Downs, 191 N.C. 203, 131 S.E. 575, and similar cases.

We do not so construe the devise to the male children of the testator and their bodily heirs. The remainder to them was not made contingent upon their surviving the life tenant as was the case in Wachovia Bank & Trust Co. v. Waddell, supra, and Mercer v. Downs, supra. Nor was it made contingent upon survival at the termination of a fixed period of time as in the case of Carter v. Kempton, supra, or upon the life tenant dying without issue as was the case in House v. House, supra.

On the contrary, the male children of Thomas M. Tyson, or their bodily heirs, prior to the execution of their respective deeds to plaintiff, were entitled to the immediate possession of the devised premises subject only to the termination of the preceding life estate. Therefore, we hold that upon the death of Thomas M. Tyson, his male children took vested remainders in the devised premises.

In the case of Chas. W. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341, 343, Barnhill, J., in speaking for the court said: "The remainder is vested, when, throughout its continuance, the remainderman and his heirs have the right to the immediate possession whenever and however the preceding estate is determined; or, in other words, a remainder is vested if, so long as it lasts, the only obstacle to the right of immediate possession by the remainderman is the existence of the preceding estate; or, again, a remainder is vested if it is subject to no condition precedent save the determination of the preceding estate."

It is the general rule that remainders vest at the death of the testator, unless some later time for the vesting is clearly expressed in the will, or is necessarily implied therefrom, Chas. W. Priddy & Co. v. Sanderford, supra. Weill v. Weill, 212 N.C. 764, 194 S.E. 462; Witty v. Witty, 184 N.C. 375, 114 S.E. 482; Baugham v. Trust Co., 181 N.C. 406, 107 S.E. 431. And it is a prevailing rule of construction with us that adverbs of time, and adverbial clauses designating time, do not create a contingency but merely indicate the time when enjoyment of the estate shall begin. Chas. W. Priddy & Co. v. Sanderford, supra; Carolina Power Co. v. Haywood, 186 N.C. 313, 119 S.E. 500.

Since in our opinion, the male children of the testator took vested remainders in the devised premises upon the death of the testator, it follows that the deed executed and delivered to plaintiff by three of the male children of the testator, and the deed executed to plaintiff by all the children of the other male child of the testator, as set out herein, are sufficient to give the plaintiff, Thomas W. Pridgen, the owner and holder of the life estate, a good, indefeasible, fee-simple estate in the devised premises. Moreover, the defendants who conveyed all their right, title, and interest in and to the devised premises, to the plaintiff, and all who may claim through or from them, are bound by these conveyances. Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625, and cited cases.

The judgment of the court below is affirmed.

VALENTINE, J., took no part in the consideration or decision of this case.