Litigation and Legislation. James McConnell Smith was the first white child born west of the Blue Ridge, in Buncombe county, but he will be remembered longer than many because of his will. He died December 11, 1853 [18 May 1856], leaving a will by which he devised to his daughter, Elizabeth A., wife of J. H. Gudger certain real estate in Asheville, "to her sole and separate use and benefit for and during her natural life, with remainder to such children as she may leave surviving her, and those representing the interest of any that may die leaving children." A petition was filed in the Superior court asking for an order to sell this property, and such an order was made and several lots were sold with partial payments made of the purchase money, when a question was raised as to the power of the court to order the sale of the property so devised. In Miller, ex parte (90 N. C. Reports, p.625), the Supreme court held that land so devised could "not be sold for partition during the continuance of the estate of the life tenant; for, until the death of the life tenant, those in remainder cannot be ascertained." The sales so made, were, therefore, void.
But years passed and some of the property became quite valuable, while another part of it, being unimproved, was nonproductive, and a charge upon the productive portion. But there seemed to be no remedy till the city of Asheville condemned a portion of the productive part for the widening of College Street. The question then arose as to how the money paid by the city for the land so appropriated to public use should be applied. On this question the Supreme court decided in Miller V. Asheville (112 N. C. Reports, 759), that the money so paid by way of damages should be substituted for the realty, and upon the happening of the contingency (death of the life tenant) be divided among the parties entitled in the same manner as the realty would have been if left intact.
Upon this hint, on the petition of the life tenant and the remaindermen, a special act was passed by the legislature (Private Laws of N. C., 1897, Ch. 152, p.286) appointing C. H. Miller a commissioner of the General Assembly to sell the land, the proceeds to become a trust fund to be applied as the will directs.
This was done; but the Supreme court (Miller V. Alexander, 122 N. C., 718) held this was in effect an attempted judicial act and therefore unconstitutional. The legislature afterwards passed a general act, which is embodied in section 1590 of the Revisal, for the sale of estates similarly situated, and under this authority some of the land was sold and the proceeds were applied to the construction of a hotel on another part. The proceeds, however, proved insufficient to complete the hotel, and in an action brought to sell still more of this land for the purpose of completing the hotel, the Supreme court held in Smith V. Miller (151 N. C., p.620), that, while the purchasers of the land already sold had received valid title to the same, still as the hotel, when completed, would not be a desirable investment, the decree for the sale of the other land, in order to provide funds for its completion, was void because it did not meet the statutory requirements that the interests involved be properly safeguarded.
1. Mrs. Elizabeth Smith Gudger died in October, 1912 [1 November 1912].
Source: History of Western North Carolina, John Preston Arthur (1914).
Decisions and Statutes
Miller, ex parte, 90 N.C. 625
Miller v. Asheville, 112 N.C. 759
Private Laws of N.C. 1897, Ch. 152, p. 286
Miller v. Alexander, 122 N.C. 718
Section 1590 N.C. Revised Statutes
Smith v. Miller, 151 N.C. 620
Miller Ex Parte, 90 N.C. 625 (1884)
By a codicil to his will made in the month of February, 1856, and proved in the county court of Buncombe at July term of the same year, James M. Smith devises certain lots, describing them, in the town of Asheville to his daughter Elizabeth A., wife of J. H. Gudger, "to her sole and separate use and benefit for and during her natural life, with remainder to such children as she may leave her surviving, and those representing the interest of any that may die leaving children."
The offspring of this marriage are the petitioners, L. R., intermarried with C. H. Miller, senior, Polly V., intermarried with J. W. Stepp, and J. H. Gudger; and the other petitioners are the infant children of the others mentioned. Their father died in 1859, and the said Elizabeth afterwards married one Winslow Smith, who also died in 1872 without issue, and she has conveyed her life estate in the premises to the said C. H. Miller, senior.
The object of this suit commenced before the clerk of the superior court is for partition and sale of the premises, the petitioner, owning the estate for the life of the devisee Elizabeth A., now of the age of fifty-five years, assenting to the proposed sale for division and expressing his willingness to accept from the proceeds a sum in solido measuring the value of his precedent estate in money, and to allow the residue to be apportioned and secured to those entitled in remainder according to their respective shares and interests. The clerk declined to entertain the petition and grant its prayer, and his ruling being affirmed by the judge, the subject is brought before us by the appeal.
In Williams v. Hassell, 73 N.C. 174, the limitation after an estate for life was "to the living issue" of the tenant in fee, and READE, J., says: "They are not the children of the testator's son Henry that take Henry's share in remainder; but only such of his children as may be living at Henry's death. And so of the rest. It will be seen, therefore, that the persons who are to take the remainder are not ascertained. They may be the same who are now in existence, or they may be added to by subsequent births, or diminished by deaths. As the persons who may be entitled to the remainder are not ascertained, so they cannot be represented; and as their numbers and conditions are not known, so the propriety of a sale of the lands cannot be determined. It was error to order a sale of the land.
The same case was again before the court at the next term ( 74 N.C. 434), on a petition filed in behalf of all the parties to the action to determine whether Hassell, as administrator de bonis non, had the right to sell the land, and the same judge says: "The opinion filed at last term declares that inasmuch as the lands are devised to first takers for life only with remainder to such of their children as should be living at their death, it cannot be ascertained now who are to take the remainder; and not being ascertained they cannot be represented or bound by any proceeding, and therefore the lands cannot be sold at all."
This case is so precisely in point with that under consideration, and so clear an exposition of the principle upon which a court of equity acts in assuming authority to dispose of estates, that we give it an unhesitating approval, and sustain the ruling of the court below.
We have not adverted to another impediment in the way of a successful prosecution of the present proceeding, for that partition is made only of estates whereof the tenants in common have the seizin and possession, and not of estates in remainder after a life estate ( Maxwell v. Maxwell, 8 Ired. Eq., 25; Hassell v. Mizell, 6 Ired. Eq., 392; Parks v. Siler, 76 N.C. 109); nor have we adverted to the obvious difficulties to be met in securing or making a proper present disposition of the fund to meet future contingencies.
We allude to them, lest our silence may be misinterpreted into an approval.
No error. Affirmed.