Strickland v. Jackson

130 S.E.2d 22 (1963) 259 N.C. 81

Hannah Vester STRICKLAND and husband, Bobby Strickland, John Milton Vester and wife, Madeline Vester and Frank Lane Vester,
v.
H. P. JACKSON and wife, Annie S. Jackson.

No. 95.

Supreme Court of North Carolina.

March 20, 1963.

Sam B. Underwood, Jr., Greenville, for plaintiffs-appellants.

James & Hite, by Kenneth G. Hite, Greenville, for defendants-appellees.

RODMAN, Justice.

The first question for decision is: What estate did the grantees named in the Tyson deed of 1905 take? Plaintiffs assert the children of M. H. Jackson and wife, Maggie, took vested remainders and upon the death of their mother, her one-fifth descended to her children, the plaintiffs. Defendants contend the estate which the children of M. H. Jackson and wife, Maggie, took was a contingent remainder vesting only in those who survived their parents.

When the rights of parties are determined by a written instrument, courts seek to determine the intent of the parties by the language they use. Where the language selected is clear and unambiguous, courts are limited to the words chosen to ascertain intent. To do otherwise would create rights and liabilities contrary to the agreement of the parties. Parks v. Venters Oil Co., 255 N.C. 498, 121 S.E.2d 850; Muncie v. Travelers Ins. Co., 253 N.C. 74, 116 S.E.2d 474; McCotter v. Barnes, 247 N.C. 480, 101 S.E.2d 330; Lewis v. Butters Lumber Co., 199 N.C. 718, 155 S.E. 726; Hinton v. Vinson, 180 N.C. 393, 104 S.E. 897.

The estates or rights which grantees take are stated in three parts of the deed: first, in the granting clause, next, in the habendum, and finally, in a paragraph imposing a lien for $700 in favor of a third party. In all three of these provisions the estate given M. H. Jackson and wife is for the term of their natural lives. These words require no interpretation.

The words used with respect to those who take in remainder vary slightly in each of the three parts of the deed. In the granting clause the remainder is given "to the children of the said M. H. Jackson and Maggie Jackson that shall be born to their inter-marriage as shall survive them * * *." In the habendum the language is "to such children as shall be born of the inter-marriage of the said M. H. Jackson and wife, Maggie Jackson, and which shall survive the said M. H. Jackson and wife, Maggie Jackson." The language in the final provision is "to such children as shall be born of the inter-marriage of said M. H. Jackson and wife, Maggie Jackson and who shall survive the said M. H. Jackson and Maggie Jackson." It is, we think, manifest that there is no conflict in the three quoted provisions. All mean those and only those who survive their parents would take an interest in the property.

The distinction between a vested and a contingent remainder is the capacity to take upon the termination of the preceding estate. Where those who are to take in remainder cannot be determined until the happening of a stated event, the remainder is contingent. Only those who can answer the roll immediately upon the happening of the event acquire any estate in the properties granted. Wimberly v. Parrish, 253 N.C. 536, 117 S.E.2d 472; Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578; Pinnell v. Dowtin, 224 N.C. 493, 31 S.E.2d 467; Carolina Power Co. v. Haywood, 186 N.C. 313, 119 S.E. 500; Richardson v. Richardson, 152 N.C. 705, 68 S.E. 217.

Here the estate in remainder was not given to the children of M. H. Jackson and Maggie Jackson, but by clear and express language to those children and only those who survived their parents. Since Mrs. Vester did not survive her parents, there was nothing for her children, plaintiffs, to inherit. First Security Trust Co. v. Henderson, 225 N.C. 567, 35 S.E.2d 694; Rigsbee v. Rigsbee, 215 N.C. 757, 3 S.E.2d 331; Jessup v. Nixon, 193 N.C. 640, 137 S.E. 810; Fulton v. Waddell, 191 N.C. 688, 132 S.E. 669; Mercer v. Downs, 191 N.C. 203, 131 S.E. 575; Whitesides v. Cooper, 115 N.C. 570, 20 S.E. 295.

It affirmatively appears from the complaint that plaintiffs acquired no interest in the land by virtue of the deed from Tyson and wife to M. H. Jackson and others.

Plaintiffs contend if they are mistaken with respect to the estate which their mother took that the deed from Tyson to Jackson and wife conveyed an estate tail converted by statute into an estate in fee simple and they take a one-fifth interest by inheritance from their grandfather and grandmother. The deed does not purport to convey an estate of inheritance to Jackson and his wife. The estate of inheritance is given to the remaindermen. An estate tail is defined in 19 Am.Jur. 507 as "an estate of inheritance which is to pass by lineal descent. The regular and general succession of heirs at law is cut off. It has been held that inasmuch as an estate tail is an estate of inheritance which descends to particular heirs, it is distinguishable from a life estate with remainder." This distinction is noted in Millsaps v. Estes, 134 N.C. 486, 46 S.E. 988; Story v. First Nat. Bank & Trust Co., 115 Fla. 436, 156 So. 101; Bodine's Administrator v. Arthur, 34 Am. St. Rep. 162.

The allegations that defendant misrepresented to his brothers their share or interest in the lands conveyed by the Tysons, leading them to believe that their respective shares were one-fifth rather than a fourth, creates no right of action in the plaintiffs. Only those who were led to part with their title by reason of false and fraudulent representation would be aggrieved parties having a right of action.

It does not appear from the will of M. H. Jackson that he attempted to deal with the lands described in the Tyson deed. True he does direct in section 7 of his will a division among his children of his real estate "located in the counties of Pitt and Washington, North Carolina." We find nothing in the will of defendant's father nor in the complaint which required defendant to elect whether he would assert his rights to the properties conveyed by the Tyson will or abandon that right and take the properties devised to him by his father. Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598; Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479, 60 A.L.R. 2d 780.

The clerk of the Superior Court where the personal representative qualifies has authority to fix the amount of fees to which an executor or administrator is entitled. G.S. § 28-170. The present action is not against defendant in his representative capacity but as an individual. If he has been allowed more compensation than is reasonable and proper, plaintiffs' remedy is to move to vacate the order fixing the fees and for an order fixing a reasonable allowance. If defendant has failed to account for monies received by him or has otherwise neglected to perform his duties, plaintiffs have their remedy by an action against defendant and the surety on his bond.

The court was correct in sustaining the demurrer. The judgment is

Affirmed.