Albright v. Albright

• Court: North Carolina Supreme Court
• Writing for the Court: ALLEN
• Citation: Albright v. Albright, 172 N.C. 351, 90 S.E. 303 (N.C. 1916)
• Decision Date: 01 November 1916
• Docket Number: (No. 334.)
• Parties: ALBRIGHT et al. v. ALBRIGHT et al

(172 N.C. 351)

90 S.E. 303

ALBRIGHT et al.

v.ALBRIGHT et al

(No. 334.)

Supreme Court of North Carolina.

Nov. 1, 1916.

Appeal from Superior Court, Alamance County; Daniels, Judge.

Action by A. C. Albright and others against T. F. Albright and others. From a judgment of voluntary nonsuit, plaintiffs appeal. Affirmed.

This is an action to remove a cloud from title, the plaintiffs alleging that they are owners in fee of the lands described in the complaint, under the will of D. H. Albright, and that the defendants are setting up an adverse claim thereto. During the trial of the action the court intimated to plaintiffs' counsel that, in its opinion, the plaintiffs were not entitled to judgment, declaring the plaintiffs the owners in fee of the lands devised by D. H. Albright to them, the court being of the opinion that each of the plaintiffs took the lands devised to him under the will as a defeasible fee. Upon this intimation of the court, the plaintiffs submitted to a judgment of nonsuit, and appealed.

Charles A. Hines, of Greensboro, for appellants.

ALLEN, J. This is an appeal from a judgment of nonsuit, to, which the plaintiffs voluntarily submitted, upon an intimation by the judge presiding, that they held only a defeasible fee under the will of D. H. Albright, and therefore the only question presented is as to the proper constructon of the will.

The devises to Walter H. Albright and Maude D. Albright are in substantially the same language, and as the devise to A. C. Albright is less favorable to the contention of the plaintiffs that they are the owners in fee of the land in controversy, we will deal only with the devise to Walter H. Albright.

In the original will of April 23, 1906, the testator devises the land to "Walter H. Albright and his heirs, " and in his codicil thereto, after making certain changes in the will, he provides as follows:

"I further change the text of my will to the extent, that the word 'heirs' shall mean and be construed by my executors as 'bodily heirs, ' so that if any one of my children shall die without leaving bodily heirs, it is my will that that child's part in the distribution of my estate shall be equally divided among my grandchildren, who are the bodily heirs of the children named in the above will."

As was said in Green v. Lane, 45 N. C. 113:

"A will is an instrument by which a person makes a disposition of his property, to take effect after his decease, and which is, in its own nature, ambulatory and revocable during his life. Jarman on Wills, 11. A codicil is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as a part of, a testament, being for its explanation, or alteration, or to make some addition to, or subtraction from, the former disposition ofthe testator. 2 Black. Com. 500; Williams Ex'rs 8."

We must then consider the codicil as a part of the original will, and must keep in mind that its office is for explanation or alteration of the will, or to add to, or subtract something from it.

The words, "heirs, " "heirs of the body, " or "bodily heirs, " have, under the statute, the same legal significance (Smith v. L. Co., 155 N. C. 392, 71 S. E. 445), and, in the absence of a contrary intention, appearing from the context, they are usually held to designate "the class of persons who by law take property by inheritance or succession from another" (Donnell v. Mateer, 40 N. C. 10), but this rule is more insistent as applied to conveyances inter vivos than to testamentary dispositions (Allen v. Pass, 20 N. C. 212).

It has been held that "heirs of the body" means children or issue (Thompson v. Mitchell, 57 N. C. 441; Crawford v. Wearn, 115 N. C. 541, 20 S. E. 724; Swindell v. Smaw, 156 N. C. 1, 72 S. E. 1); and the same construction has been given to "bodily heirs" (Pless v. Coble, 58 N. C. 231), and to "lawful heirs" (Francks v. Whitaker, 116 N. C....