Lee v. Oates

WalKeb, J.,

after stating tbe case: Tbe first objection to tbe title, which tbe plaintiff has offered by bis deed, is that one of bis grantors, Mrs. Elizabeth J. Lee, was by tbe deed of Mrs. Nancy S. Smith, tbe original source of title, forbidden to sell her life estate or tbe proceeds arising therefrom by anticipation or otherwise. There is such' a provision in tbe deed, but, being a condition subsequent and one that is void as against public policy, she held her estate discharged of it. There is a conflict in the authorities, but this Court has for many years consistently held that tbe doctrine as to restraints on alienation applies as well to estates for life as to estates in fee simple, and to equitable estates as well as to legal estates. “A restraint on tbe alienation of an equitable estate is as much against public policy as is a restraint on tbe alienation of a legal estate. Certainly no one has ever shown a distinction.” Gray’s Restraints on tbe Alienation of Property (1895), p. 241. This is a well settled rule, as is shown clearly in our decisions, and the sound reasons for its adoption are fully stated. Tbe question is so fully discussed in tbe comparatively recent case of Wool v. Fleet-wood, 136 N. C., 460, that a bare reference to tbe other cases is all that is required to show that it has long been the accepted doctrine of this Court. Dick v. Pitchford, 21 N. C., 480; Mebane v. Mebane, 39 N. C., 131; School Comrs. v. Kesler, 67 N. C., 447; Pace v. Pace, 73 N. C., 119; Hardy v. Galloway, 111 N. C., 519; Pritchard v. Bailey, 113 N. C., 521; Latimer v. Waddell, 119 N. C., 370; Christmas v. Winston, 152 N. C., 48, and Trust Co. v. Nicholson, 162 N. C., 257; 24 A. and E. Enc. of Law, 870, and notes. “The capricious regulations which individuals would fain impose on the enjoyment and disposal of property must yield to the fixed rules which have been prescribed by the supreme power as essential to the useful existence of property.” Didc v. Pitchford, supra. We have simply followed the English ruta

' The recognized exception to the principle that provisions against alienating life interests are void is in the case of a married woman. About the beginning of the eighteenth century equity established the doctrine of the separate estate of married women, by which they could have equitable interests in property .apart from their husbands and free from their husbands’ control. This doctrine has always been distinctly regarded a violation of the rules of law, introduced for the benefit of married women. Gray on Restraints, pp. 138, 139. That writer says, at secs. 141, 142: “It was found that the doctrine gave very imperfect protection to married women, because they were still in danger of parting with their property under the influence or threats 6f their husbands, and Lord Thurlow, at the end of the last century, invented the clause against anticipation, which was generally adopted, and the validity of which it was declared by Lord Eldon, in 1817, in Jackson v. Hobhouse, 2 Mer., 483, 488, to be too late to question. It is only, however, in connection with the separate estate of a married woman that this restraint upon anticipation has been allowed in England; and the general doctrine that neither law nor equity allows any person, except a married woman, to have an alienable life interest has been constantly asserted. Thus, per Lord Cottenham, Chancellor, in the great case of Tullet v. Armstrong, 4 Myl. and Cr., 377, 393, 394, 405: 'The power (to prohibit anticipation) could only have been founded upon the power of this Court to model and qualify an interest in property which it had itself created, without regard to those rules which the law has established for regulating the enjoyment of property in other cases.’ 'The separate estate and the prohibition of anticipation are equally creatures of equity, and equally inconsistent with the ordinary rules of property. The one is only a restriction and qualification of the other. The two must stand or fall together.’ When this Court first established the separate estate, it violated the laws of property as between husband and wife; but it was thought beneficial, and it prevailed. It being once settled that a wife might enjoy her separate estate as a feme sole, tbe laws of property attached to this new estate; and it was found, as paid of such law, that tbe power of alienation belonged to tbe wife, and was destructive of tbe security intended for it. Equity again interfered, and, by another violation of tbe laws of property, supported tbe validity of tbe prohibition against alienation.” This is a satisfactory view of tbe rule, its origin and development.

But tbe exemption of a married woman’s separate equitable estate was intended for her protection just so long as she needs it, for that purpose; but when tbe marital tie is severed by tbe death of tbe bus-band, as in this case, it is required no longer as a protection against bis improvidence. Ruffin, C. J., says in Mebane v. Mebane, supra: “Tbe doctrine rests .upon these considerations: that a gift of tbe legal property in a thing includes the jus disponendi, and that a restriction on that right, as a condition, is repugnant to tbe grant, and therefore void; and that, in a court of equity, a cestui que trust is looked on as tbe real owner, and tbe trust governed in this respect by tbe same rules which govern legal interests; and, consequently, that it is equally repugnant to equitable ownership that tbe owner should not have the power of alienating bis property. There is, indeed, an exception to tbe general rule, which is founded on tbe peculiar incapacities of married women and their subjection to their husbands. A gift in trust for tbe separate use of a married woman, or in contemplation of her marriage", may be coupled with a provision against alienation or anticipation; for, in truth, tbe restriction is imposed for her protection, and, as she is sub potestate viri, it will more frequently operate as a beneficial protection than in prejudice to her. But restraints, as conditions merely, upon alienation by a person sui juris have been held in a great number of cases to be null, as regards property given through the medium of a trust; and several of them are cited in Dick v. Pitchford, supra.” 8 Ruling Case Law, secs. 174, 175, 176, contains a clear and succinct statement of tbe doctrine.

But we have said when the reason for tbe exception in favor of a married woman ceases, tbe rule will then operate as fully as if there bad been no exception, and this is when she becomes discovert by death or absolute divorce, so that her husband has no further control or dominion over her. Cord in, his Treatise on the Legal and Equitable Rights of Married Women says at p. 427, sec. 1163: “A further and very important protection over property settled on the wife at the time of her marriage, for her separate use, is a clause against a power to sell, convey, or assign, by anticipation; such is held to be an obligatory and valid mode of securing the same more effectually to her against marital influences. This restraint, however, ceases on the death of her husband, the reason and expediency for it having ceased.” A learned and able review of this subject, with a full citation of authorities bear-mg upon it, will be found in 2 Rent Commentaries, 12 Ed. (1873), side page 170, notes b and (1). It is there said that “a clause in a gift or deed of settlement upon the wife, against anticipation, is held to be an obligatory and valid mode of preventing her from depriving herself, through marital or other influence, of the benefit of her property.” The notes to the text will show that the courts have regarded the restraint as entirely inoperative when she is discovert.

Junius M. Lee died in the year 1902, and the restraint on alienation or anticipation was void from that time, and as the deed of Mrs. Lee, his widow, was executed on 11 January, 1916, the title it passed was unaffected by this provision of Mrs. Nancy S. Smith’s deed. Nor do we think that, because the restraining provision is in the form of a covenant, it i.s any more valid than if it had been called a condition. A covenant which is against public policy is no more enforcible, and of no greater force or effect, than a mere condition. Both restrain and are equally void. Jervis v. Burton, 2 Vernon, 251. “Invalid conditions or provisions against alienation in a deed or will do not defeat the estate to which they are annexed. In such cases the gift stands and the invalid condition or provision is rejected.” 24 A. and E. Enc. (2 Ed), p. 872.

There is no provision for a limitation over upon breach of the condition or covenant in this deed, which might save the condition. Wool v. Fleetwood, supra; Gray’s Restraints on Alienation, sec. 780. But the defendant contends that as Mrs. Lee signed the deed, and thereby agreed by the terms of her covenant not to alien her estate, and as plaintiff also signed the deed, and thereby assented to the covenant restraining Mrs. Lee from convoying away her estate, they are both now estopped to violate it, as they escaped a revocation of the limitations by Mrs. Smith during her lifetime by strictly adhering to the covenant, and should not he allowed to take advantage of her death after they have received the benefit of the gift and after the power of revocation is gone. This would enforce a restriction by estoppel, which the law declares void. The covenant was-a “dead letter” when it was entered into, and we do not think it can be vitalized in this way. Because Mrs. Lee did not convey in the lifetime of her mother, and not until thirty years thereafter, is no reason why the parties should be estopped for not observing a void provision in the deed. If in the lifetime of her mother Mrs. Lee had aliened her estate, there is nothing to show that Mrs. Smith would not have assented thereto, notwithstanding the restraint. "When Mrs. Smith died her power of revocation ceased, and the clause of restraint on alienation being void, there is nothing to prevent a conveyance by Mrs. Lee of her interest. We can discover none of the elements of an equitable estoppel in the case, and nothing more than the exercise of a legal right to part with her life estate in the land.

Tbe defendant’s next contention is that plaintiff has only a contingent interest, as his estate is liable to go over before his death without issue and vest in Mrs. Lillian A. Springs, wife of R. C. Springs, the other donees, Anna B. Lee and W. Bernard Smith, having died without issue. But Mrs. Springs and her husband have conveyed their interest and estate to the plaintiff. This is admitted; but defendant attacks the deed upon the ground that it is void, as it conveys only a contingent remainder or a defeasible fee. This Court has frequently held that such an estate may be conveyed. Bodenhamer v. Welch, 89 N. C., 78; Wright v. Brown, 116 N. C., 26; Brown v. Dail, 117 N. C., 41; Kornegay v. Miller, 137 N. C., 659; Cheek v. Walker, 138 N. C., 446; Beacorn v. Amos, 161 N. C., 357; Hobgood v. Hobgood, 169 N. C., 485; Scott v. Henderson, ibid., 660. We said in Kornegay v. Miller, supra, at p. 664: “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 a.n heir apparent has in his ancestor’s estate. . . . But executory devises are not considered as mere possibilities, but as certain interests and estates. After citing Gurnell v. Wood, Willes, 211, and Jones v. Roe, 3 T. R., 93, in which may be found an interesting review of the cases, the learned judge says: £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 Atherly, p. 555, both in real and personal estate, and by any mode of conveyance by which they might be transferred, had they been vested remainders.’ It is true that the deed in that case was sustained upon other grounds, but the language used shows the opinion held by the learned and eminent judge who wrote for Ruffin, Gaston, and himself.” And in Cheek v. Walker, supra, the Court held, as appears by the syllabus: “Where a father devised to his son (the plaintiff) certain property, and by a codicil provided if his son ‘dies unmarried or leaving no children’ the property shall go to certain relatives: Held, that deeds executed by said relatives and by the children of such as were dead, conveying to the plaintiff ‘all the right which they now have or may hereafter have’ in said property, vest in him an indefeasible title.” And again: “Contingencies, which import a present interest of which the future enjoyment is contingent, are devisable and descendible, and may be the subject of release in certain cases, operating as an estoppel on the heirs and effectual as a valid conveyance.” That would seem to be our case' exactly, and there are others of those above cited which are strikingly similar in their facts. Mrs. Springs did not have a bare possibility, as 'assumed by defendant, but “a certain interest and estate,” subject, it is true, to "the happening of a contingent event, but nevertheless sufficiently certain, or rather probable, to make it the subject of assignment by a proper, instrument of conveyance. Unlike a bare possibility, as the heir’s expectancy in Ms parent’s estate, it does not depend upon the mere volition of any one, but is an interest which, is fixed hy the deed or will creating it, and which will finally vest in interest and possession if the event takes place.

The third position of defendant is that the legal title is outstanding. As to Mrs. Lee’s life estate, so long as her husband lived, it was necessary that the trust for her separate use and maintenance should continue, as it was then active; but when her husband died, and the disability of coverture was removed, and there was no longer any necessity for a trustee to protect her interest, and as the trust then became passive, the statute executed the use and united the legal and equitable estates in her. Cameron v. Hicks, 141 N. C., 21; Perkins v. Brinkley, 133 N. C., 154; Springs v. Hopkins, ante, 486. “Where the use is executed by the statute, the trustee takes no estate or interest, both the legal and equitable estates vesting in the cestui que trust; but where the use is not executed, the legal title passes to the trustee. The extent and quality of the estate taken by the trustee depends largely upon the purposes of the trust and the duties imposed thereby, as expressed in the terms of the instrument creating the trust, which the court will so far as possible construe to best effectuate the intention of the creator. The estate of the trustee is commensurate with the powers conferred by the trust and the purposes to be effectuated by it; or, in other words, the trustee takes exactly that quantity of interest, whatever it may be, which the purposes of the trust and its proper execution may require, and no more; and the purposes of the trust being executed, the trustee’s estate ceases, the title passing by operation of law to the cestui que trust " 39 Cyc., 207.

As to the balance of the estate, viz., that given defeasibly to B. Rush Lee, and alternatively, upon his dying without issue, to Mrs. Lillian Springs, by way of shifting use or conditional limitation (Smith v. Brisson, 90 N. C., 284), there is no necessity that the legal estate originally vested in B. R. Smith, as trustee, should continue in him or his heirs, ho having since died, because, as stated in Kornegay v. Miller, supra, and Beacom v. Amos, supra, the three estates, the life estate of Mrs. Lee, the estate given toi B. Rush Lee in remainder, and the one limited over to Mrs. Springs, have all united in the plaintiff, and the original estate of the plaintiff and that of Mrs. Springs have thereby been divested of their contingent character. They have all, so to speak, merged in one and the same person, and no trust is required to preserve any contingent remainder, if such there was, before the conveyances were executed. 16 Cyc., 656. The estate given to the plaintiff by the deed was a vested one — subject, it is true, to -be divested upon the happening of the contingency, when the use will shift to Mrs. Springs; but nevertheless a vested one, as the conditional element is not incorporated into the description of the gift to the remaindermen, but the interest is fully vested and a clause is added divesting it, wbicb makes it a vested remainder. Starnes v. Hill, 112 N. C., 1; Whitesides v. Cooper, 115 N. C., 570; 2 Minor’s Institutes, 814. The statute executed this use, or transferred the seizin to the person having the use.

This is not the ease of a trustee who is appointed to preserve contingent remainders, as we have shown. Mr. Perry, in his work on Trusts (5 Ed.), see. 378, says: “Executory devises are a species of testamentary dispositions allowed by courts of law, and when properly exercised they pass the legal estate or interest to all persons in favor of whom the dispositions are made. They are devises to take effect at a certain time in the future, or upon a certain event, and in favor of certain persons. Limitations by way of springing or shifting uses are similar in effect, except that they are created by deeds inter vivos, and are based upon the statute of uses. Whenever the event happens when a shifting or springing use is to take effect, the statute of uses vests the legal seizin and ownership in the person entitled by virtue of the use.”

We do not ignore rules of law in construing deeds and other instruments, where there is doubt as to the intention, and construction is necessary ; but where the intention is clearly expressed, a rule of law will not be allowed to defeat it, and where technical language is used, we presume the intention to be as thus expressed and as the law construes it. Wilkins v. Norman, 139 N. C., 40. But in any view taken of the deed, the construction must be as we have stated it. It is said in 2 Washburn on Real Property (5 Ed.), p. 678, marg. p. 294: “In one important respect the law as to future executory uses, answering to springing and shifting uses, varies from that relating to contingent remainders by the way of uses as it stood until the late statutory regulations upon the subject; and that is, as to the former being affected by the changes in or destruction of the estates which precede them. It is only necessary to repeat that, in case of a contingent remainder, by destroying that upon which it depends; but nothing which the owner of a prior limited estate, in the- case of a springing or shifting use, can do can bar or affect the latter, since the second estate does not depend upon the first.”

We do not see, therefore, that, under our procedure, the trustee was a necessary party to the suit for a reinvestment of the land upon the uses declared in the deed, as he had no real interest in it. Smith v. Moore, 142 N. C., 277. The plaintiff and Mrs. Lillian A. Springs were parties, and there were other heirs of Mrs. Nancy S. Smith, who were parties, and all vested and contingent interests were represented by some of the parties to the suit. This is said in addition to the fact that Mrs. Springs has conveyed ber interest to tbe plaintiff and tbe other limitations over bave been defeated. Smith v. Moore, supra. Tbe trustee bad nothing to do but to bold tbe legal title, and when it became unnecessary to do this, or tbe trust ceased to be active, tbe statute executed tbe use, and be, therefore, bad no interest in tbe suit. Smith v. Proctor, 139 N. C., 314; Gomez v. Gomez, 81 Hun, 566. It should further be said that tbe limitation over to tbe use of Mrs. Carrie E. Smith for life or widowhood, with remainder to tbe right heirs of tbe donor, has been defeated, as it was dependent upon an event which did not happen, viz., tbe death of both Lillian A. and W. Bernard Smith, in tbe lifetime of their father, W. Me. Smith, and Lillian A. Smith, now Mrs. R. C. Springs, survived him. Smith v. Moore, supra.

We cannot adopt tbe suggested view that if Mrs. Springs should die at any time without issue tbe use would shift to the heirs-of Mrs. Nancy S. Smith, Mrs. Carrie E. Smith, the life tenant, having died. The estate became absolute in Mrs. Springs upon her surviving her father, and this was the clear intention of the donor; otherwise she would have expressed her intention differently. Both the life estate of Mrs. Carrie E. Smith and the remainder in fee of the heirs were made dependent upon the death of Mrs; Springs in the lifetime of her father. There is no violation of the rule against perpetuities, as the dying of each party, B. R. Lee or Lillian A. Smith (Mrs. Springs) without issue, means, under our statute (Revisal, sec. 1581), a dying without having issue living at the time of her or his death.

¥e have found no error in the judgment of the court.

Affirmed.