Daniel v. Bass

• Decision Date: 02 March 1927
• Docket Number: 54.
• Citation: Daniel v. Bass, 193 N.C. 294, 136 S.E. 733 (N.C. 1927)
• Parties: DANIEL v. BASS et al.
• Court: North Carolina Supreme Court

136 S.E. 733

193 N.C. 294

DANIEL v. BASS et al.

No. 54.

Supreme Court of North Carolina

March 2, 1927

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

Suit by Barnes Daniel, administrator c. t. a. of Nancy Daniel against Celia Bass and others. From the judgment defendant C L. Rowe and others appeal. Modified and affirmed.

Devise to brother who predeceased testatrix lapsed and vested in testatrix's heirs at law and distributees, in absence of residuary clause.

Isaac Daniel had two brothers and seven sisters, John Daniel, Jacob Daniel, Nancy Daniel, Mahala Daniel, Celia Bass, Sallie Rowe Delphia Daniel, Mary Jane Hathaway, and Harriet Tomlinson. The last two died in the lifetime of Isaac, leaving children the others survived him. He died April 1, 1926, leaving a will, the second item of which is as follows:

"I give and devise to my beloved sisters. Nancy Daniel and Mahala Daniel, equally the tract or parcel of land I drew from my father's estate, containing 16 acres, known as the Josiah Daniel land, and all other property in my possession at my death, to them and their heirs forever, if any. If not, to the heirs of my sisters, Mary Jane Hathaway, Celia Bass and Sallie Rowe, to them and their assigns, forever."

His sister, Nancy Daniel, died April 7, 1926, leaving a will, the second item being as follows:

"I give and devise to my beloved sister, Mahala Daniel, and brother, Isaac Daniel, equally the tract or parcel of land I drew from my father's estate, containing 16 acres, known as the Josiah Daniel land and all other property in my possession at my death, to them and their heirs forever. If any, if not to the heirs of my beloved sisters, Mary Jane Hathaway, Celia Bass and Sallie Rowe to them and their assigns forever."

The plaintiff's object in bringing suit was to get the advice of the court as to the construction of the wills and as to his duty in the administration of the estate. Bank v. Alexander, 188 N.C. 667, 125 S.E. 385. The defendants are the surviving brothers and sisters, the surviving children of Mary Jane Hathaway and Harriet Tomlinson, and the children of Celia Bass and Sallie Rowe. The appellants are Celia's and Sallie's children.

Isaac, Nancy, and Mahala lived together on a farm which they inherited from their father. On September 28, 1905, each of them executed a will, the respective devises being almost identical except as to the names of the devisees-Isaac naming Nancy and Mahala as his beneficiaries, Nancy naming Isaac and Mahala, and Mahala naming Isaac and Nancy. Neither Isaac nor Nancy ever married; Mahala married Barnes Daniel, the administrator, and is now living.

The appellants contend:

(1) That the real property devised to Mahala Daniel and Nancy Daniel in the last will and testament of Isaac B. Daniel went to Mahala Daniel and Nancy Daniel for life only, with remainder to the heirs of children of Mary Jane Hathaway, Celia Bass, and Sallie Rowe.

(2) That the personal property in the last will and testament of Isaac B. Daniel likewise went to Nancy Daniel and Mahala Daniel for life only, with remainder to the heirs, or children of Mary Jane Hathaway, Celia Bass, and Sallie Rowe.

(3) That the devise to Mahala Daniel, in the last will and testament of Nancy Daniel, of one-half of her individual real estate, went to Mahala Daniel for life, with remainder, in the event of Mahala Daniel's death without issue, to the heirs of children of Mary Jane Hathaway, Celia Bass, and Sallie Rowe.

(4) That the personalty bequeathed in the will of Nancy Daniel to Mahala Daniel went to Mahala Daniel for life, and in the event that Mahala Daniel died without issue, with remainder to the heirs of or children of Mary Jane Hathaway, Celia Bass, and Sallie Rowe.

(5) That the devise in the last will and testament of Nancy Daniel to her brother, Isaac B. Daniel, who predeceased her, lapsed, and both the real and personal property contained in that devise went to the distributees or next of kin generally of Nancy Daniel.

Mahala Daniel, appellee, submits four theses:

(1) That under the rule in Shelley's Case Mahala Daniel takes a fee simple and absolute estate in the entire property.

(2) That under the rule in Wild's Case, 6 Coke, 16b, Mahala Daniel takes a fee simple and absolute estate in the entire property.

(3) The gift to the first taker being absolute in its character, if it should be construed that there is a gift over, that such gift over is void because of repugnancy.

(4) If it should be held that there was a contingent limitation, the death of the testator was the proper time to determine when the fee simple and absolute estate should vest.

His honor adjudged:

(1) That Mahala Daniel is the owner in fee simple of all the property, real and personal, of which Isaac Daniel and Nancy Daniel died seized and possessed.

(2) That the administrator out of the personal estate pay the debts of Isaac and Nancy, respectively, etc.

C. L. Rowe and other defendants excepted and appealed.

Woodard & Rand, of Wilson, and Brooks, Parker, Smith & Hayes, of Greensboro, for Mahala Daniel.

Lucas, Barnes & Jennings, of Wilson, for appellants.

Connor & Hill, of Wilson, for plaintiff appellee.

ADAMS J.

With the exception of the devisees therein named the second item in each of the three wills is substantially the same, and, as Isaac Daniel predeceased his two sisters, we may first consider the words in which he expressed his devise:

"To my beloved sisters, Nancy Daniel and Mahala Daniel, *** to them and their heirs forever, if any, if not to the heirs of my sisters, Mary Jane Hathaway, Celia Bass and Sallie Rowe, to them and their assigns forever."

It may be said, in the first place, that the devise is not within the scope or provisions of the rule in Shelley's Case. In Coke's definition of the rule the word "remainder" does not appear (1 Coke, 104), but in Preston's it does:

"When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and afterwards in the same deed, will or writing, there is a limitation by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally or his heirs of his body by that name in deeds or writings of conveyance, and by that or some such name in wills, and as a class or denomination of persons to take in succession, from generation to generation, the limitation to the heirs will entitle the person or ancestor himself to the estate or interest imported by that limitation." 1 Preston on Estate, 263 et seq.

This language was abridged by Chancellor Kent as follows:

"When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." 4 Kent's Com. 215.

The doctrine that a remainder, or the "similitude of a remainder," is an element essential to the rule has been approved in numerous decisions, including Jones v. Wichard, 163 N.C. 241, 79 S.E. 503; Reid v. Neal, 182 N.C. 192, 108 S.E. 769; Willis v. Trust Co., 183 N.C. 267, 111 S.E. 163; Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 34 A. L. R. 952; Shephard v. Horton, 188 N.C. 787, 125 S.E. 539; Benton v. Bancom, 192 N.C. 135 S.E. 629. See, also, Hamilton v. Sidwell, 131 Ky. 428, 115 S.W. 204, 29 L. R. A. (N. S.) 961, and annotation, 973. In the wills under consideration neither devise creates a remainder or reflects the semblance of a remainder, and the rule in Shelley's Case is excluded.

We are likewise of opinion that Wild's Case has no application. 6 Coke, 16b; 77 Eng. Reports, 277. There the special verdict was to this effect: Land was devised to A. for life, the remainder to B. and the heirs of his body, the remainder to "Rowland Wild and his wife, and after their decease to their children," Rowland and his wife then having issue a son and daughter; afterwards the devisor died; and after his decease A. died, B. died without issue, Rowland and his wife died, and the son had issue, a daughter, and died. Whether...