Edens v. Foulks - 2 N.C. App. 325, 163 S.E.2d 51 (1968)

Rule:

One entitled to a contingent remainder cannot maintain an action at law against the tenant in possession to recover damages for waste, for the reason that it cannot be known in advance of the happening of the contingency whether the contingent remainderman would suffer damage or loss by the waste; and if the estate never became vested in him, he would be paid for that which he had not lost.

Facts:

The testator executed a will in which he bequeathed to his grandson the south side of his home place to use during his lifetime and then to the next of his kin. The testator died, and the grandson was possessed of the land. The grandson's daughter claimed that defendant entered upon the home place and wrongfully cut down timber and sold it. She initiated an action for waste against defendant. Defendant filed a demurrer, claiming that the daughter was a contingent remainderman and could not sue for waste. The trial court sustained the demurrer. The daughter appealed, claiming that she had a vested remainder in the lands.

Issue:

Did the grandson’s daughter have the standing to maintain an action for waste under N.C. Gen. Stat. § 1-533? 

Answer:

No.

Conclusion:

In affirming the judgment, the court found that the daughter had no standing to maintain an action for waste under N.C. Gen. Stat. § 1-533. The court held that the grandson's nearest kin was to be ascertained at his death and that such class might or might not include the daughter. The court further held that if the daughter survived him, she might be his nearest kin. The daughter did not have an immediate estate of inheritance, and if the estate never became vested, then she would recover for that which she had not lost.