A devise of land to A for life, and then to " be sold and the money arising
therefrom equally divided between the then surviving children of A ",— creates such an interest in the children as vests only at the death of A:
therefore, a conveyance thereof made during A's lifetime by the husbands of two of the children who in the event survived, passed nothing, and
their wives, at the death of A, were entitled to take the land specifically or to have it sold, as they might elect.
(Arrington v. Yarbrough, 1 Jon. Eq., 72, cited and approved.)
Bill, for an injunction, &c, filed to Fall Term 1867 of the Court of Equity for. Granville. A demurrer having then been put in, it was set down
for argument, and the case transmitted to this court.
The complainants were the only children who survived their mother, one Elizabeth Hester, who died in Granville county in 1864. They
showed that one Thomas Reeks, who died in 1802, had devised a tract of land to his wife for life, and after that to the said Elizabeth
Hester for life, " and at her decease my will and desire is that the said two hundred acres of land shall be sold, and the money arising
therefrom shall be equally divided between the then surviving children of her the said Elizabeth Hester"; that they were the only
children who so survived, and that they were in possession of the said land. They also set forth that the defendants claimed that one of
themselves, Elba Parish, was entitled to the land as assignee of the husbands of the complainants, under deeds executed in the life-time
of Elizabeth Hester, and to which complainants were not parties; and under such claim threatened to dispossess them and have the land
sold; that the husband of the complainant Lucy had died in the life time of Mrs. Hester, and that Alexander Clark, the husband of
the other complainant, was living and a party defendant to the bill. They also stated that they were advised that they had a right to elect to
receive the land without a sale, and that they did so elect. The prayer was for an injunction, and for further relief.
No counsel for the complainants.
Edwards, contra.
1. The land, under the circumstances, is in equity considered money. Fletcher v. Ashburner, 1 Lead. Cas. Eq., 534; ScvR v.
Jernigan, 2 D. & B. Eq., 144; Smith v. McCrary, 3 Ire. Eq., 204; Bateman v. Latham, 3 Jon. Eq., 35.
2. The right of election can be exercised only where all who have it concur in doing so;—by married women, only when privily examined; and in no
case, where rights of third persons have intervened. Here Parish cannot, in Alexander Clark's life time, be prevented from
reducing into possession his share. Lead. Cas. (above); Arrington v. Yarbrough, 1 Jon. Eq., 72.
3. Mrs. Clark can claim no equity to a settlement, or like right. Lassiter v. Dawson, 2 Dev. Eq., 383; Bryan v.
Bryan, 1 D. & B. Eq, 47; Allen v. Allen, 2 Jon. Eq, 239.
Reade, J. The devise to Elizabeth Hester for life remainder to such of her children as should be living at her death, did not vest
any estate in the plaintiffs (her daughters) during her life, because it was uncertain whether they or either of them would survive her. Their
interest was contingent, and was not, and could not have been, reduced into possession by their husbands in the life-time of their mother.
Therefore, at the time when their husbands attempted to convey the lands to Parish, they had nothing to convey, and
their deed conveyed nothing. Arlington v. Yarbrough, 1 Jon. Eq., 72.
The plaintiffs have the right to elect to take the land instead of the proceeds of sale.
The demurrer must be overruled with costs.
Per Curiam. • Decree accordingly
|
