{ "id": 8658216, "name": "HODGES v. LIPSCOMB", "name_abbreviation": "Hodges v. Lipscomb", "decision_date": "1901-03-26", "docket_number": "", "first_page": "57", "last_page": "63", "citations": [ { "type": "official", "cite": "128 N.C. 57" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "118 N. C., 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653896 ], "opinion_index": 0, "case_paths": [ "/nc/118/0735-01" ] }, { "cite": "115 N. C., 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652471 ], "opinion_index": 0, "case_paths": [ "/nc/115/0570-01" ] }, { "cite": "111 N. C., 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650412 ], "opinion_index": 0, "case_paths": [ "/nc/111/0028-01" ] }, { "cite": "97 N. C., 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649532 ], "opinion_index": 0, "case_paths": [ "/nc/97/0132-01" ] }, { "cite": "96 N. C., 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650568 ], "opinion_index": 0, "case_paths": [ "/nc/96/0451-01" ] }, { "cite": "90 N. C., 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698542 ], "opinion_index": 0, "case_paths": [ "/nc/90/0625-01" ] }, { "cite": "76 N. C., 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698004 ], "opinion_index": 0, "case_paths": [ "/nc/76/0442-01" ] }, { "cite": "73 N. C., 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688085 ], "opinion_index": 0, "case_paths": [ "/nc/73/0174-01" ] }, { "cite": "74 N. C., 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682988 ], "opinion_index": 0, "case_paths": [ "/nc/74/0434-01" ] }, { "cite": "98 N. C., 445", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "62 N. C., 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2091724 ], "opinion_index": 0, "case_paths": [ "/nc/62/0097-01" ] }, { "cite": "93 N. C., 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273774 ], "opinion_index": 0, "case_paths": [ "/nc/93/0384-01" ] }, { "cite": "72 N. C., 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8691986 ], "opinion_index": 0, "case_paths": [ "/nc/72/0240-01" ] }, { "cite": "68 N. C., 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2083706 ], "opinion_index": 0, "case_paths": [ "/nc/68/0528-01" ] }, { "cite": "56 N. C., 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693498 ], "opinion_index": 0, "case_paths": [ "/nc/56/0400-01" ] } ], "analysis": { "cardinality": 643, "char_count": 12099, "ocr_confidence": 0.453, "pagerank": { "raw": 3.2102599743224885e-07, "percentile": 0.8664389313817138 }, "sha256": "a6840aed29b0a122ff895c3564629bdb8dc72a8411bc43208f728189074021f4", "simhash": "1:d7cd7812cbf724c5", "word_count": 2152 }, "last_updated": "2023-07-14T15:44:14.013877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HODGES v. LIPSCOMB." ], "opinions": [ { "text": "Clabe, J.\nWhen one closes bis eyes on sublunary scenes, \u00a1and from bis cold grasp drops tbe things for which be has toiled, or sinned, be has no natural right to direct what shall become of them thereafter. The right to dispose of property by will is purely statutory, as Mr. Blackstone tells us. Erom the Conquest down to the comparatively recent Statute of Wills, 27 and 32 TIenry VIII, the power to dispose of realty by will did not exist in England (2 Bl. Com., 374). This-right is not recognized, or recognized only to a limited part of the estate, in Prance and many other countries. As it is. given by statute it may be modified or revoked by statute.\nPew men comparatively can manage their estates to the-best advantage when living. When one undertakes by will to tie up his estate and confer it upon contingent remainders,, and remainders in a double aspect, and upon the other complications presented in the case before us, the result is almost, necessarily detrimental to those intended to be benefited, ancL calls in question the wisdom of the statute which permits a dead hand to control to such an extent the devolution of property. No human wisdom can foresee the condition of the beneficiaries and of the property in the shifting combination, of events. Circumstances will always arise which inevitably will make desirable a change of investment or of the limitations. But as long as the law remains unchanged by statute, the Courts can not change it. Desirable as is the relief' here sought, the law is so well settled that it is a matter of' some surprise that the point could be again submitted to the-Courts. The abuses arising from the unrestricted power of a testator over devised estates in tying them up caused long-years ago the passage of the \u201cThelusson\u201d act, restricting such-power of future control to \u201clife, or lives in being and twenty-one year thereafter.\u201d It is for the legislative power, not for the Courts, to consider whether that act should, not be extended so as to prevent limitations such as here appear and which are equally against public policy and the interest of' the immediate devisees.\nIn the present case the testator devised one piece of property to his adopted daughter Minnie for life and \u201cat her-death to such child or children as she may leave surviving her, and if any of said children shall die, leaving issue, prior to the death of said Minnie, in that event such issue shall represent and take the share of its immediate ancestor.\u201d Another piece of realty is given to testator\u2019s adopted daughter Bettie for life, with remainders over in the same terms used above.\nAnother tract is given to Minnie and Bettie \u201cto be divided between them in the following proportions, to-wit: to-the said Minnie such part as the number of children which she may have living at my death, or (sic) born unto her thereafter, as hereinafter provided, shall bear to the whole number of children which she and the said Bettie may have living at my death, or born unto her, as herein provided, shall bear to-the whole number of children which she and the said Minnie shall have living.at my death, or born unto them thereafter.\n\u201cIf either the said Minnie or the said Bettie shall after my death have born unto them any child or children, then and in that event I wish and direct the portions hereinbefore-given to them to be so changed that the same may and shall conform to- the principle of division hereinbefore set forth; that is to say, that the said after-born child or children shall be counted and provided for in the same manner as if living at the time of my death, my purpose and intention being to-make the number of children the said devisees may have the basis of the division of my estate between them. The said devisee shall have and take the said plantation, in the -proportion hereinbefore set forth, for and during their natural lives and the life of each of them, and upon their death, or the death of either of them, the share or portion given to the one-so dying shall pass to and vest in the child or children which may survive her and the issue of such child or children as-may die during the lifetime of the said mother, such issue representing and talcing the portion of its immediate ancestor in the same proportion as such ancestor would have done if surviving the mother.\u201d\nBy the residuary clause the residue is left to Minnie and Bettie \u201cin the same proportion and subject to the same limitations\u201d as the tract of land last above mentioned. The testator then says: \u201cIf, however, the said Minnie or the said Bettie shall die leaving no child or children living at her death, nor the issue of any child or children, then and in that event the portion or shares given her in severalty in this will shall pass to and vest in the survivor, in the same manner and subject to the same limitations as herein set forth in respect to the original share or portion. If both the said Minnie and the said Bettie shall die leaving no child or children, nor the issue of any child or children, living at their death, or the death of the survivor, then and in that event, I direct that my entire estate shall be divided equally between my heirs-at-law and distributees and the heirs-at-law and distributees of the said Minnie- and Bettie, claiming and entitled through their mother. In making such partition my executors shall be guided and controlled by the canons of descent and the statute of distribution in force in North Carolina.\u201d\nBoth Minnie and Bettie are living, one aged 15 years and the other 43. The complaint avers, as we may well believe, that their interest and that of their living children, all of whom are minors, except one, would be enhanced by a sale of portions of the real property and its conveyance to the purchasers \u201cfree from the limitations set out in the will\u201d and the investment of the proceeds in buildings on the other realty, subject to the approval of the Court.\nThe complaint further avers, as we may well believe also, that in consequence of above limitations parties refuse to purchase, fearing that they can not get a good title.\nThe complaint avers that \u201cthe defendants will be the heirs-at-law and distributees of said Minnie and Bettie in the event of their death without issue, or the issue of such issue.\u201d It is difficult to see how that can be averred. It is true they might be the heirs-at-law and distributees if Minnie and Bettie should die now without issue, but it is impossible to say who would be their heirs-at-law and distributees when they shall die, if they shall then leave no issue \u2014 the contingency named in the will.\nBesides, the testator\u2019s heirs-at-law and distributees who are to share with the heirs-at-law and distributees of Minnie and Bettie, in event of their decease without issue, are not even named as defendants, and of course who they would be when that contingency might happen could not now be known.\nThe confidence of testators who thus think they can wisely control the management and descent of their property uncounted years after they have gone hence is not less astonishing than their willingness to entrust to the wisdom of grandchildren, or greait-g^anjddii'ldren, or contingent and still more remote and utterly unknown remaindermen, an untrammelled ownership of the property which they are unwilling to bestow upon their own children.\nBut as such latitude is allowed, we must take the law as we find it written.\nIn Watson v. Watson, 56 N. C., 400, where the devise was to \u201ctestator\u2019s son for life, then to such children as might be living at his death and the issue of such as might have died leaving issue, and if the testator\u2019s son should die without leaving issue living at his death then to certain persons\u201d (named in the will), it was held that tire Court could not sell the property on petition of the son though he was young and unmarried and all the persons named in the will as contingent re-maindermen except one had released to the son \u2014 all of them being parties defendant and the testator\u2019s son being plaintiff. The reason, given is that where the contingency is limited to a person not in esse the Court can not decree a sale. To same effect Watson v. Dodd, 68 N. C., 528; S. C., 72 N. C., 240. A contingent remainder can not be sold under execution (Bristol v. Hallyburton, 93 N. C., 384), and of course it can not be sold by order of Court when the contingency has not yet happened which shall determine who the remaindermen are, as the heirs-at-law and distributees of testator and of Minnie and Bettie at the time when they may happen to die leaving no issue.\nIn Ex Parte Dodd, 62 N. C., 97, it was held that where any members of a class to whom an executory devise is limited are in esse the Court may order, in a proper case, a sale of the devised land, otherwise when no such members are in esse. This has been well settled ever since. Irvin v. Clark, 98 N. C., 445.\nIn Williams v. Hassell, 74 N. C., 434, affirming S. C., 73 N. C., 174, it is held that under a devise to \u201cA, B and C for life, with remainder to such of their children as should be living at their death,\u2019\u2019the land could not be sold for partition though one of the life tenants had died leaving two children, because though these two remaindermen were known the others were not yet ascertained and the land \u201ccan not be ; sold in any way or by any person\u201d till they are. This case has been cited and approved in many cases which can be readily found upon turning to Mr. Monroe\u2019s valuable table of \u201cMarginal Annotations.\u201d In that case the Court calls attention to the distinction between a limitation over \u201cto the children of the life tenant\u201d in which event the class being-known the land can be sold upon proper proceedings (for the children then born represent those thereafter) and a devise (like this) to \u201csuch children as shall be living at death of life tenant.\u201d\nThere are several other complications in the case at bar, among them tbe devise \u201cto sucb children, as may then be living or born thereafter.\u201d Among many cases on same line, Justice v. Guion, 76 N. C., 442; Miller Ex Parte, 90 N. C., 625; Overman v. Simms, 96 N. C., 451; Young v. Young, 97 N. C., 132; Irvin v. Clark, 98 N. C., at page 445; Aydlell v. Pendleton, 111 N. C., 28; Whitesides v. Cooper, 115 N. C., 570; Smith v. Smith, 118 N. C., 735.\nIf the Courts possessed the power it would doubtless be to the interest of the parties to order the sale here, asked for. The act of 1748, ch. 204 (now Code, 1325), converted by one \u2022 stroke of the legislative pen estates tail into fee simple, and a similar act placing settlements of the kind before ns, whether made by deed or will, in the power of the Courts, or else cutting off the remainders beyond the first takers after the life tenant might commend itself to the law-making power, by reason of the public policy to disincumber and unfetter the disposal and transfer of realty. But the Courts had no power to convert estates tail into fee simple, and they have not the power to do what is here asked by the plaintiffs.\nJudgment reversed and\nAction dismissed.", "type": "majority", "author": "Clabe, J." } ], "attorneys": [ "Connor & Connor, for the plaintiffs.", "No counsel for tbe defendants." ], "corrections": "", "head_matter": "HODGES v. LIPSCOMB.\n(Filed March 26, 1901.)\nESTATES \u2014 Wills\u2014Sale of Contingent Remainder,\nThe Courts will not decree a sale of land where it is limited in remainder to persons not in esse.\nActioN by Samuel ITodges and wife Minnie D. ITodges, Eliza D. Hodges, Wiley D. Hodges,, Emily N. Hodges, S. W. Hodges, Robert G. Hodges and Minnie R. Hodges (tbe last .six being infants and appearing by tbeir next friend, Samuel Hodges), E. E. McDaniel and wife Bettie E. McDaniel, Paul Slocumb and wife Minnie 0. Slocumb, Sarab H. McDaniel, Georgia B. McDaniel, Bettie McDaniel, Madge McDaniel, and Albert A. Slocumb (tbe last five being infants .and appearing by tbeir next friend, E. E. McDaniel), plaintiffs, against James Lipscomb, Ernest Deans, Herbert'Roun-tree and James B. Rountree, beard by Judge A. L. Goble, at .February Term, 1901, of WilsoN County Superior Court. From judgment ordering a sale of property, tbe defendants appealed.\nConnor & Connor, for the plaintiffs.\nNo counsel for tbe defendants." }, "file_name": "0057-01", "first_page_order": 93, "last_page_order": 99 }