Cox v. Heath

• Decision Date: 19 March 1930
• Docket Number: 168.
• Citation: 152 S.E. 388,198 N.C. 503
• Parties: COX et al. v. HEATH et al.
• Court: North Carolina Supreme Court

152 S.E. 388

198 N.C. 503

COX et al. v. HEATH et al.

No. 168.

Supreme Court of North Carolina

March 19, 1930

Appeal from Superior Court, Craven County; Barnhill, Judge.

Controversy without action between Siddie McCoy Cox and another and J. E Heath and others. From an adverse judgment, plaintiffs appeal.

Affirmed.

Heirs of two deceased brothers of testator shared equally with his two sisters in property devised to his "nearest heirs."--

Controversy without action. It is agreed:

"1. That E. H. Heath died November 14, 1921, a resident of Craven County, North Carolina, leaving a last will and testament in words and figures as follows:

"'I E. H. Heath, do make and publish this my last will and testament, hereby revoking all former wills by me made. I bequeath all my personal property whatsoever the same may be, to my wife, Lydia E. Heath, for her maintenance and until her death then what is left of the property unexpended I give to my nearest heirs. Also I devise all my real estate whatsoever the same may be, to my wife, Lydia E. Heath until her death, then I give it to my nearest heirs.

"'I appoint my said wife the executrix of this my last will and testament. My will is that my said wife shall not be required to give any bond or security to the Judge of Probate for the execution of the duties of executrix.

"'In witness whereof, I have hereunto set my hand and seal, this 20th day of January, 1917. E. H. Heath.'

"2. That said will was filed for probate on November 16, 1921, and recorded in Book of Wills 'I,' page 198, in the office of the Clerk of the Superior Court of Craven County.

"3. That the widow and life tenant, Lydia E. Heath, died on the 6th day of May, 1929.

"4. That the property referred to in the will is situated in Craven County, North Carolina.

"5. That at all times prior to his death, the said E. H. Heath was on equally friendly terms with the parties to this controversy and while living with the parents of his neices and nephews.

"6. That Siddie McCoy Cox, age 64, and Lizzie A. Dougherty, age 74, are sisters of E. H. Heath the testator.

"7. That Edmond B. Heath, brother of the testator, died June 28, 1898, leaving surviving him the following children: C. F. Heath, J. E. Heath, D. C. Heath, G. J. Heath, J. A. Heath, Fronie Heath, who married Fred Ipock; Damie Heath, who married Clarence Wayne; Macie Heath, who married Horace Clark; Lily Heath who married C. H. Riggs; Mollie Heath, who married Ernest Glover; W. E. Heath, who died since the testator, leaving his widow, Ada Heath and one minor child, Artha Heath, and one child named Verla Heath who is mentally incapable of transacting business who appear in this action by their Next Friend, Ada Heath; Arden Heath, who died leaving surviving him his widow, Dora Heath, and one minor child, Ida Belle Heath, who appears in this action by her Next Friend, Dora Gaskins.

"8. That Fred Heath died June 5, 1919, leaving surviving him the following children; Janie Heath, who married Harman Wilson; Rosa Heath, who married Herbert McCoy, said McCoy being now dead; Bertha Heath, who married Edward Turnage; Jackson Heath; Clyde Heath; Fred Heath; Roy Heath; that said Fred Heath, brother of the testator, was predeceased by his daughter, Susan Mary Heath, who married Luke Jones, and the said Susan Mary Jones left surviving her her husband, Luke Jones, her son Clarence Jones, and a son by a former marriage, George Charlton.

"9. The widow and life tenant, prior to her death, consumed all the personal property and this controversy only concerns the proper construction of the will as same affects the real estate.

"10. The named plaintiffs, sisters of the testator, E. H. Heath, contend that they, under the terms of the will, take all of said property to the exclusion of the neices and nephews of the testator.

"11. The named defendants, being the neices and nephews of the testator, contend that under the terms of the will the property should descend per stirpes to the sisters and the representatives of the deceased brothers and that they take in the same manner as their immediate ancestors would have taken had such ancestors survived the testator.

"12. If the Court shall be of the opinion, on the facts herein set out, that said property, under the terms of the will, descends to the surviving sisters of the testator to the exclusion of the representatives of the deceased brothers, it is agreed that the Court shall render judgment accordingly; if the Court shall be of the opinion that said property descends equally to the surviving sisters and to the children and representatives of the deceased brothers per stirpes, it is agreed that judgment shall be rendered accordingly."

The court rendered judgment "that the plaintiffs and the defendants take the real estate bequeathed by E. H. Heath, per stirpes." The plaintiffs excepted and assigned error and appealed to the Supreme Court.

D. L. Ward, of New Bern, for appellants.

Whitehurst & Barden, of New Bern, for appellees.

CLARKSON J.

The question for our decision: Who are entitled to the real estate under the will of the testator, E. H. Heath, who used the words "my nearest heirs?" The testator died November 14, 1921, and this will was probated November 16 1921. The will was made January 20, 1917, and at the time the testator had a wife, who survived him and died May 6, 1929. The provision in the will to be considered: "I devise all my real estate whatsoever the same may be, to my wife, Lydia E. Heath until her death, then I give it to my nearest heirs. " He had a brother and two sisters living when the will was made and one brother dead, this brother died June 28, 1898, both brothers left heirs--who are defendants in this action. The other brother died June 5, 1919. Do the two sisters, plaintiffs in this action, get under the will the entire property left by their brothers as "my nearest heirs," or do the heirs of the two brothers representing their ancestor get an equal share with their aunts, the plaintiffs? We think that all share alike as "my...