Wake County NcArchives Court.....Ex Parte, E. B. Yancey Et Als., 1899
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Connie Ardrey n/a December 8, 2011, 7:53 pm

Source: N C Reports
Written: 1899

E. B. Yancey et als., ex parte

(Decided March 14, 1899)

Devise - Life Tenant - Remaindermen - Order of Sale - Purchaser

1. Where there is a devise for life with remainder over to persons not in 
esse, the life tenant still living, the Court can not order a sale, because 
there can be no one before the Court to represent the interest of the 
remaindermen.

2. It is otherwise, when all the remaindermen living are before the Court - 
they represent a class, and when the gift is general, with no element of 
survivorship in it, afterwards born are concluded by the action of the Court 
upon those of the same class then before it - and the purchaser gets a good 
title.

Petition, ex parte, for sale of land for re-investment. There was order for 
sale. Sale reported and heard before Brown, J., at Wake Superior Court, 
February Term, 1899.

One of the purchasers, J. D. Boushall, upon notice, refused to complete his 
purchase, on the ground, alleged, that he did not buy a good title. The Court 
adjudged otherwise, and required him to complete his purchase, to which ruling 
the purchaser excepted and appealed.

The point in issue related to a devise for life with remainder over, contained 
in the will of N. S. Harp.

The devise under consideration, and the circumstances of the case, are stated 
in the opinion.

Messrs. Shepherd & Busbee, for appellees
No counsel contra

NC Supreme Court Justice Faircloth, C. J. - N. S. Harp devised as 
follows: "All the residue of my estate, real and personal and mixed, I give 
and bequeath to my wife, Lucy H. Harp, during her natural life, and then in 
remainder to my daughter Elodia Benton Yancey, wife of Thomas B. Yancey, 
during her natural life and then to her children." Elodia and her children, 
some of whom are minors represented by their next friend, ask the Court to 
order a sale of the land, and that the proceeds be invested under the 
direction of the Court for their benefit. The purchaser of one lot declines to 
pay his bid, and raises the question whether the Court has the power to order 
the sale, and that is the only question.

We are not considering whether Elodia acquired an estate in fee or for life 
only. She and her children are asking for a sale. The only suggested 
difficulty is that by possibility she may have other children, whose interest 
can not now be sold. We think the appellant's contention is untenable. When 
the life tenant, still living, has no child, it has been held that the Court 
has no power to order a sale of land where it is limited in remainder to 
persons not in ese, because there can be no one before the Court to represent 
their interest. 

So also, if the devise was in remainder to such children as should be living 
at the death of the life tenant the Court could not sell, for until that event 
it could not be known who would take.

But when all the remaindermen living are before the Court, they represent a 
class, and when the gift is general and there is no element of survivorship in 
it, it is otherwise, and by representation those who may afterwards be born 
are concluded by the action of the Court upon those of the same class, then 
before it, and the purchaser at such sale will acquire a good title against 
afterborn children of the same life tenant.

In Williams v. Hassell, supra, the Court said: "Suppose in the case before us 
the devise had been to the first takers for life, remainder to their children; 
that would take in all the children, as well as those born after the death of 
the testator as those born before, and in such case it may be that the born 
child might be allowed to represent the class." That supposed case is just 
what we now have before us.

The investment will be made as the Court may direct, and the case is retained 
for further direction.

It is to the interest of our people that the title to property should be 
clogged as little as possible, with "limitations," "trusts," etc., and public 
policy requires that the alienation of land should be as free from such 
condition as any article of traffic.

Affirmed.

Additional Comments:
In the NC Supreme Court February Term 1899

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