Croom v. Herring

• Decision Date: 30 June 1826
• Citation: 11 N.C. 393
• Court: North Carolina Supreme Court
• Parties: CROOM, EXECUTOR OF WHITFIELD, v. HERRING ET AL., LEGATEES OF WHITFIELD.

11 N.C. 393

CROOM, EXECUTOR OF WHITFIELD,

v.HERRING ET AL., LEGATEES OF WHITFIELD.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1826.

1. B. W., having several children, to the elder of whom he had made considerable advancements, made his will, and after devising and bequeathing real and personal estate to his wife and to his younger children, and confirming the advancements made to the elder, directed the residue of his estate, real and personal, to be sold and the proceeds "to be divided among all his heirs, according to the statute of distribution of intestates' estates."

2. Held, the word "heirs," as here used, means heirs quoad the property, and not "children," "next of kin," or "heirs at law." By it is to be understood those whom the law appoints to succeed beneficially to the property in question. The whole of the property here is personal, for the laud, being directed to be sold and the proceeds divided, is regarded in this Court as personalty. Therefore, the widow of the testator is entitled under that term—she being by law appointed to succeed to personal property as well as the children, all claiming under the same statute.

3. The surplus mentioned in this clause is to be divided among those entitled, without any reference to the advancements or property bequeathed by other clauses.

FROM LENOIR. The bill, which was filed 10 April, 1820, stated that Bryan Whitfield died, having made a will, of which the plaintiff was an executor, and the sole surviving executor of those who had qualified; that a difficulty had arisen in the construction of the will whereby plaintiff was likely to be injured, by reason of conflicting claims, and, therefore, he prayed that the parties interested might be made to interplead with each other, and that for his protection he might have the' advice and instruction of the court.

Bryan Whitfield had many children. To the elder of these he had made considerable advancements, both of real and personal estate. By his will he also devised to each of his younger children (who had not been advanced) real estate, bank stock, and slaves; and he also devised to his wife real estate, and bequeathed to her a few slaves and stock, provisions, and farming utensils to the value of $1,200; and he also devised and bequeathed to his elder children the estate advanced to them.

The testator, besides the estate so particularly advanced, devised and bequeathed, was seized and possessed of real estate, bank stock, slaves, and other personal property to the value of $80,000.

After the several devises and bequests to his wife and children above mentioned, there came the following clause:

"I leave all my estate not mentioned in this will, both real and personal, except negroes and bank stock, to be sold on twelve months credit, and the money arising from the sale thereof, and the debts due me, after discharging all my just debts, together with my negroes and bank stock, not disposed of by this will, I leave to be divided among all my heirs, agreeable to the statute of distributions of intestates' estates."

The widow dissented from the will, and dower in the real estate was allotted her, but no notice was taken by them of the personal estate.

Upon the clause above recited, various claims were set up: the widow claiming to be entitled as one of the "heirs," according to the statute; the younger children contending that the advancements made during the testator's life should be brought into hotchpot, if the children advanced

claimed any part of the residuum; while the older children insisted that the residuum should be distributed without reference to the advancements; or that the specific legacies, as well as advancements, should be taken into account.

The cause was removed to this Court by affidavit.

HENDERSON, J. He on whom the law casts an inheritance on the death of the ancestor is designated by the technical word heir. It could not originally be used to designate him on whom the law casts the goods or chattel property, for it cast them on no one; no person was appointed by law to succeed to the deceased ancestor; on his death theybecame bona vacantia, and were seized by the king on that account, and by him, as grand almoner, applied to pious uses (now considered superstitious), for the good of the soul of their former owner. Hence it is that in the common-law vocabulary there could be found no technical word to designate such successor. After one was pointed out by the statute of distributions the technical word used in regard to inheritances would not answer for that purpose; for very frequently the persons are different, the rules of construction being very different from the canons of descent. The word "heir," therefore, retains its primitive and technical signification when standing alone and unexplained by the context. But as words of every kind, technical as well as others, and particularly when used in last wills, are liable to be varied in their meaning, to meet the intention of those who use them, when shown in an authentic manner the word heir may mean some other person than him on whom the law casts the inheritance in a real estate; and the question is, Whom does it mean, when used in a last will, in reference to personal property?

It is admitted by all that it does not (unless under peculiar circumstances) mean the heir to real estate. By some it is said that it means children; by others, next of kin; and by others, all those who are called to succeed to personal estate by law (the statute of distributions). Those who are in favor of the meaning first mentioned, "children," say that this is its vulgar and common meaning, and as it cannot have its technical one, it must have this. I think that the premises are incorrect, and, even if correct, that the conclusion does not follow. The word heirs, in common conversation, may and very often must be understood to mean children; but this arises not from the word alone, but from the context, the manner and cause of speaking. For a person to say that another has got an heir, or that he has heirs, must unquestionably mean, if the speaker meant anything, that he has a child or children; for, to understand him as communicating something, and at the same time to use the word heir in its extended sense, is next to

impossible; for there is not a man in a hundred thousand born without there being some one to succeed to his property, should he die instantly, particularly to personal property, where foreigners are not excluded. Most of us are born with innumerable heirs, if so understood. Unless, therefore, we are speaking of some foreigner just come among us, and then in regard to real property, or some person whose family connection is unknown, or supposed to be unknown, to the person spoken to, children must be presumed to be meant by the speaker by the word heirs; for we are not born with children—they are an after acquisition; all of us do not have them at any time. It would be an absurdity to suppose that the speaker designed to communicate to another, to inform him that another had that which is common to every man in the community when, by not a very strained construction, a sensible and rational meaning can be attributed to the speaker. I think, therefore, that the word heirs, of itself, unaided by anything else, does not mean children, in common or vulgar conversation; although in such conversation it must be so understood, to give to the speaker a rational meaning, or any meaning at all. This arises from what may properly be called the context, the subject; and if the premises are right, I should think the conclusion wrong; for the word was certainly adopted from the law of inheritances, and thereby acquired an analogous meaning, which would by such construction be entirely lost. Others say that it means next of kin, admitting the analogy, and contending that blood connection is an essential constituent in an heir. It is admitted that, by the canons of descent in England, one to succeed as heir must be of the blood of the ancestor; but he is heir not because he is of the blood, but because he is the successor of the estate of the dead man. The law has prescribed blood as a qualification; but the right to succeed, and not the reason wherefore, stampshim with the character of heir. The law prescribed the canon of descent to point out the successor; the person who succeeds is heir, not because he succeeds by this or that rule, but because he succeeds. And at once to put the argument at rest, it may be asked, Does...