Privett v. Jones

111 S.E.2d 533 (1959) 251 N.C. 386

Mrs. Minnie PRIVETT, widow, et al., Petitioners,
v.
Lucius JONES, J. E. Malone, guardian ad litem of Lucius Jones and the unborn children of Mildred Lucille Jones, et al., Defendants.

No. 397.

Supreme Court of North Carolina.

December 16, 1959.

W. H. Taylor, Louisburg, for guardian ad litem Malone, appellants.

Lumpkin & Lumpkin, Louisburg, for Charles Ronald Chamblee, appellee.

Gaither M. Beam, Louisburg, for guardian ad litem, appellee.

John F. Matthews, Louisburg, for guardian ad litem, appellee.

WINBORNE, Chief Justice.

The sole question on this appeal is as to what interest, if any, does Charles Ronald Chamblee, son of Lucille Chamblee, deceased daughter of Mildred Lucille Jones, have in the land involved in this proceeding. The trial judge held, and properly so, that Charles Ronald Chamblee takes the interest which his mother Lucille Chamblee would have taken had she been living at the time of the death of her mother Mildred Lucille Jones, life tenant.

In this connection, where a will devises a life estate to a woman for life, with remainder to her children, and there are children in being at the death of the testator, such children take a vested remainder, "subject to open and let in any that may afterwards be born before the determination of the particular estate." Roper Lbr. Co. v. Herrington, 183 N.C. 85, 110 S.E. 656, 658, and cases cited. To like effect are: Bell v. Gillam, 200 N.C. 411, 157 S.E. 60; Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641.

The same principle applies to like provisions in deeds. See Griffin v. Springer, 244 N.C. 95, 92 S.E.2d 682; Blanchard v. Ward, 244 N.C. 142, 92 S.E.2d 776; Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922.

And the principle is recognized in these cases: Waddell v. United Cigar Stores, 195 N.C. 434, 142 S.E. 585; Wachovia Bank & Trust Co. v. Stevenson, 196 N.C. 29, 144 S.E. 370; Greene v. Stadiem, 198 N.C. 445, 152 S.E. 398; Spencer v. McCleneghan, 202 N.C. 662, 163 S.E. 753; Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365; Neill v. Bach, 231 N.C. 391, 57 S.E.2d 385.

In the present case testator devised the land involved in this proceeding to his three daughters, share and share alike, for the term of their natural lives only, with provision that upon the death of any one of them her one-third share to go to her children, if any; and bearing in mind that each of the daughters had children living at the date of the death of the testator,— such children took a vested remainder subject to open and let in any child thereafter born to either of said daughters. The daughter Mildred Lucille, whose husband is T. G. Jones, had two children so living, a son Lucius Jones, and a daughter Lucille, who married Charles Chamblee. This son and this daughter each took a vested remainder by purchase and became "a new stirpes of inheritance or new stock of descent", King v. Scoggin, 92 N.C. 99, cited and applied in Blanchard v. Ward, supra, and upon the death of the daughter Lucille Chamblee her estate passed directly by descent to her son, Charles Ronald Chamblee.

And in accordance therewith, the judgment from which appeal is taken is

Affirmed.

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