E L L W O O D , O R R & W I L S O N V S
P L U M M E R & F E R R I S
O P I N I O N
State of North Carolina January Term, 1878
Supreme Court No. 277 Mecklenburg
Sophia Ellwood et al vs R. A. Plummer et al
Opinion
Faircloth, J.
The only question presented by the record is whether the estate of R. A. Plummer was a vested or contingent interest at the time of the sheriffs sale, during the term of the life tenants, and that depends on the question whether his estate vested at the death of the testator or at the death of the surviving life tenant who is now dead. This seems to be a plain question, both from the authorities and the language of the testatrix. A copy of the entire will is not before us, but only extracts from which alone we are to gather the intention. If the intention was uncertain and doubtful the Court would incline to a vested estate, because that construction tends to certainty and settles the right of property. The whole tract of land is devised to one Orr, in trust for two of the testatrix' daughters during their natural life time, to be equally divided and after the death of either, in trust, in part, for her three grand children, until the death of the other daughter, "at which time" said plantation is to be "equally divided" between said three grandchildren of whom R. A. Plummer is one. Here both the object of the gift and the event of its full enjoyment are certain, which makes a vested remainder unless a different intention can be discovered in the will. It is plain, also, that equality was the desire of the testatrix, but a different conclusion would lead to inequality in the event of the death of one of the grand children, leaving children, before the death of the tenant for life.
There is a class of cases in which the gift is postponed to some future time, in which, usually, some express reason is given, or is easily gathered from the context of the will, for the postponement. This class is usually recognized, when there is nothing else to control by the use of the words give or devise to a man, "at" "when" or "if" -- meaning at the death of the particular tenant, or when the devisee shall obtain a certain age or if some other event shall take place. These expressions are as applicable to the substance of the gift as they are to the time of its enjoyment and the legacy would lapse if the legatee should die before the time indicated by these expressions, and this is the general rule.
There is another class distinguishable from the above, such as a gift to one, payable at a particular time or to be paid when a particular thing shall happen. In these the time does not refer to the substance of the gift, but only to the time of its complete enjoyment and no lapse can occur in the meantime. And it has been held that the expression "equally to be divided" means the same as payable or to be paid. Guyther vs Taylor 3 Ire. Eq. 333. Giles vs Franks 2 Dev. Eq. 521.
It will be seen that the expressions in the present case are substantially identical with those in the latter class of cases. No reason whatever appears why the gift should not take effect until the death of the surviving life tenant, but a good reason does appear why the division merely was postponed until that time, which was that the purposes of the trust might be performed by the trustee, at which time his duties ceased and the grand children were entitled to a division and possession of their estate. This being so the plaintiffs are entitled to recover. Sulton vs West 77 N.C. Rep. 429.
No error. Judgement here for the plaintiffs.
Per Curium. Affirmed.
A true copyTest
Wm H. Bagley Clerk
26 August 1846, prb in Oct 1856 Ct.]
J U D G M E N T F O R C O S T
20 May 1878
Clerks Office vs R. A. Plummer R. A. McNeely & William N. Black
Judge for cost 20 May 78
J R Erwin CSC $11.40
E A Osborne 1.60
W Maxwell 1.00
A Burwell 4.00
J. N. Caldwell 1.20
(total) $19.20
R A Plummer
R A McNeely &
William N. Black
E 77 off Spring Term 1878
Superior Court Mecklenburg County
Sophia Ellwood et al
Against
Robt A. Plummer
At a Superior Court held at the Court House in Charlotte, in the County of Mecklenburg on the 20 day of May 1878
Present, Hon. W. R. Cox, Judge.
This action having been brought to a trial by the Court, a trial by Jury having been waived, and a decision therein rendered for the Plaintiff, it is now on motion of A Burwell Counsel for the Plaintiff
Adjudged That the Plaintiffs, recover of the Defendant, R. A. Plummer and his surety the costs of action, to be taxed by the clerk.
Wm. R. Cox
Judge Presiding
[ E l l w o o d , O r r & W i l s o n v s P l u m m e r & F e r r i s ]
