Litigation and Legislation. James McConnell Smith [purportedly] 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."[1] 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.
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NOTES.
1. Mrs. Elizabeth Smith Gudger died in October, 1912 [1 November 1912].
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Source: History of Western North Carolina, John Preston Arthur (1914).
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