Bird v. Gilliam Et Ux

• Court: North Carolina Supreme Court
• Writing for the Court: MONTGOMERY
• Citation: Bird v. Gilliam Et Ux, 28 S.E. 489, 121 N.C. 326 (N.C. 1897)
• Decision Date: 23 December 1897
• Parties: BIRD v. GILLIAM et ux.

28 S.E. 489

121 N.C. 326

BIRD

v.GILLIAM et ux.

Supreme Court of North Carolina.

Dec. 23, 1897.

Wills—Rule in Shelley's Case.

A will devised land to the testator's daughter during her natural life, and to the heirs of her body; but, if she should have no lawful heirs of her body, the land at her death to go to a son, and the heirs of his body. Held, to be no case for the application of the rule in Shelley's Case, either as to the daughter or the son, as the explanatory words, "if she should have no heirs of her body, " limit the words "heirs of her body, " and the daughter and son each take only a life estate, and upon the death of both without issue the estate reverts to the heirs of the testator.

Appeal from superior court, Bertie county; Bryan, Judge.

Action by Mary Bird against Allen Gilliam and wife. From a judgment for defendants, plaintiff appeals. Reversed.

F. D. Winston, for appellant.

R. B. Peebles, for appellees.

MONTGOMERY, J. The courts always give that interpretation to wills which will most effectually cany out the intention of the testator, and there Is no exception to this rule but in those cases where the testator uses technical words, which in law have a definite meaning, and which are construed under a rule of the law. The defendant insists in the case before us that the testator had made use of certain technical words, which In law thwart his intention, and that, under the rule in Shelley's Case, he (defendant) has a good title to the land conveyed to him by the deed hereinafter mentioned. The following is theclause of the will, the true construction of which will settle the contention between the parties: "I, John Swain, being of sound, disposing mind and memory, do this day make this, my last will and testament: After my debts are paid, the land whereon I now live, and in my possession, I loan to my wife during her natural life, and at her death I loan the same to my daughter, Mary, during her natural life, and give the same to the heirs of her body; but If my daughter, Mary, should not have no lawful heirs of her body, the said land at her death shall go back to my son, William, and the heirs of his body." Mary died without issue; and William died without issue, before Mary, having conveyed in his lifetime, by deed, his interest to Mary. The defendant claims by a deed from Mary, executed after the deed from William to her. The plaintiff is next of kin and heir at law of the testator. The rule in Shelley's Case does not apply here....