Pasquotank County NcArchives Court.....George B. Pendleton Et Al, E. F. Aydlett V. 1892
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Source: N C Reports
Written: 1892

E. F. Aydlett v. George B. Pendleton et al

Partition - Estates, Contingent

A sale for partition will not be decreed where there are contingent 
remainders, or other future conditional interests, unless all the persons who 
may be by any possibility interested unite in asking for such decree - the Act 
of 1887, ch. 214, not applying to such contingent estates and interests.

This was a Special Proceeding commenced before the Clerk of the Superior Curt 
of Pasquotank County, and heard before Shuford, J., upon appeal at Spring 
Term, 1892, of Pasquotank Superior Court.

The plaintiff asks for sale of the land described in the petition for 
partition.

The petitioner owns the interest of Jane R. Pendleton and R. D. Williams. The 
defendants George and Kate Pendleton are infants and unmarried and without 
issue and oppose the sale.

The land cannot be actually partitioned, but sale must be had for that purpose.

The Court refused to grant an order of sale for partition. Plaintiff accepted 
and appealed.

All the parties claim under a deed from Charles Guirkin, trustee, and Andrew 
L. Pendleton to Jane R. Pendleton, George W. Pendleton and Kate Pendleton, 
executed on the 1st day of March, 1888, the material portions of which are:

"That for and in consideration of the premises, and the further sum of ten 
dollars in hand paid by the parties of the second part, the receipt of which 
is hereby acknowledged, the said Charles Guirkin, trustee as aforesaid, and 
said Andrew L. Pendleton have given, granted, bargained, sold and conveyed, 
and by these presents do give, grant, bargain, sell and convey unto the 
parties of the second part in interest as to time and amount of enjoyment and 
so forth as hereinafter set out, the following pieces and parcel of land, to-
wit:

"To have and to hold the above mentioned and described property unto the said 
Jane R. Pendleton for and during the term of her natural life free from the 
control and encumbrances of any and all persons whatsoever."

"To have and to hold one-third of the remainder unto the said Robert D. 
Williams and his heirs forever. To have and to hold the other two-thirds of 
the said remainder in equal parts in severalty unto the said George W. 
Pendleton and Kate Pendleton each for his or her natural life, but if the said 
George or the said Kate shall die, leaving issue of their body, or the body of 
either, or the issue of said issue, living at the time of his or her death, 
then to have and to hold the part of the one so dying and so leaving lineal 
heirs unto the said George W. or unto her, the said Kate, and his or her heirs 
in fee forever. But if the said George W. or the said Kate shall die without 
leaving such issue, or the issue of such, at his or her death, then to have 
and to hold the remainder after their life estate unto the said Robert D. 
Williams and his heirs in fee. But if either the said George or the said Kate 
shall die, not leaving issue of the body of the one dying, but leaving the 
other surviving, then to have and to hold the part of the one so dying, one 
moiety thereof unto the said Robert D. Williams and his heirs, and one-half 
thereof unto the survivor for and during the term of their natural life, and 
if the survivor shall die, leaving issue living at his or her death, or the 
issue of such, then to have and to hold the part last mentioned unto the said 
survivor and his or her heirs. But if the survivor shall die, not leaving 
issue at his or her death, or the issue of such, then the remainder of said 
life estate herein granted to have and to hold unto the said Robert D. 
Williams and his heirs. The object of thus limiting the estate herein granted 
being to secure the same to the blood of said Jane R. Pendleton in exclusion 
of the relations of the half-blood of the said George W. and Kate on the side 
of their father and said Andrew L. Pendleton."

E. F. Aydlett, for plaintiff
E. C. Smith, for defendant

NC Supreme Court Justice Shepherd, J. - At common law there could be no 
compulsory partition between tenants in common, and it was within the power of 
each co-tenant to annoy and injure the others by an unreasonable assertion of 
his undoubted right to be in possession of every part of the lands of the co-
tenancy.

It is true that in some instances a person may represent the interests of 
others of his class who are not in esse, but the Court only decrees a sale in 
such cases where the interests of the parties will be materially and 
essentially promoted. Such is not the case before us. It is simply a petition 
for a sale for partition, and it is an inflexible rule of this Court that no 
such sale will be decreed where there are contingent remainders, or other 
future conditional interests, unless all of the persons, who may by any 
possibility be interested, unite in asking for such relief. (see court case 
for judge's full findings)

Affirmed.

Additional Comments:
In the NC Supreme Court September Term 1892

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