Ford v. McBrayer

• Citation: 88 S.E. 736,171 N.C. 420
• Decision Date: 03 May 1916
• Docket Number: 507.
• Parties: FORD ET AL. v. MCBRAYER ET AL.
• Court: United States State Supreme Court of North Carolina

88 S.E. 736

171 N.C. 420

FORD ET AL. v. MCBRAYER ET AL.

No. 507.

Supreme Court of North Carolina

May 3, 1916

Appeal from Superior Court, Rutherford County; Harding, Judge.

Partition by Louis Ford and others against T. C. McBrayer and others. Judgment for defendants and plaintiffs appeal. Reversed.

Where the will devises property to a child to be hers as long as she lives and then to her bodily issue, it should be construed as creating a life estate in the first taker.

This is a proceeding for the partition of a tract of land formerly belonging to Joshua Ford, who died leaving a will, the parts of which material to this controversy are as follows:

"Third it is my will that my daughter, Laura, and son, John, shall have the tract of land on which I now live, containing 84 3/4 acres, to be equally divided between them. Said Laura's part to be hers as long as she lives, and then to go to her bodily issue, and if she should marry that my son John shall see that her husband shall not dispose of her part of the land. Fourth, it is my will that my son John shall have one mule and one wagon, one cow to John and one cow and calf to Laura. Fifth, it is my will that all my other property be equally divided between my son James and my daughters Rachel and Hannah and Laura and my two sons Lewis and John to be divided by themselves if they can agree, if not to pick three disinterested men to divide for them."

After the death of Joshua Ford, his two children, John and Laura divided the land referred to in the third item of the will by deeds with full covenants. At the time of the death of Joshua Ford, he left surviving six children--Lewis, James, John Rachel, Hannah, and Laura. These were the six children mentioned in the residuary clause of the will of Joshua Ford. Hannah died before Laura, and John died after Laura; and neither Hannah nor John left a will, nor did either of them leave any descendants. Laura's husband died before February 10, 1902. Laura conveyed the land in controversy, being the land described in the deed to her from John Ford, to the defendant McBrayer, and died leaving no children, and no children were ever born to her. The plaintiffs contend that Laura Ford took only an estate for life under the will of Joshua Ford, and that upon her death without having had children, the title descended to the heirs of Joshua Ford, or passed under the residuary clause in the will. The defendant McBrayer contends that Laura took an estate in fee under the rule in Shelley's Case, and therefore that he is the owner of the whole of said land under the deed from Laura. He contends, further, that if she had only a life estate, he is the owner of two-fifths of said land under the several deeds executed by the parties. His honor held that Laura took an estate in fee and entered judgment accordingly, and the plaintiffs excepted and appealed.

Eaves & Edwards, of Rutherfordton, for appellants.

McBrayer & McBrayer, of Rutherfordton, and Tillett & Guthrie and Didlake & Gover, all of Charlotte, for appellees.

ALLEN J.

The rule in Shelley's Case is well established as a rule of property in this state. It is much older than the case, which has given it a name, which was decided in the reign of Queen Elizabeth.

"Some writers trace its origin to the feudal system, which favors the taking of estates by descent rather than by purchase, because in the former case the rights of wardship, marriage, relief, and other feudal incidents attached, while in the latter the taker was relieved from those burdens. Others attribute it to the aversion of the common law to fees in abeyance, a desire to promote the transferability of real property, and, as far as possible, to make it liable for the specialty debts of the ancestor." Daniel v. Whartenby, 84 U.S. (17 Wall.) 639, 21 L.Ed. 661.

That rule is thus stated by Coke:

"Where the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same instrument an estate is limited, either mediately or immediately, to his heirs in fee or in fee tail, 'the heirs' are words of limitation of the estate and not of purchase." Coke, 104.

And by Chancellor Kent:

"Where a person takes an estate of freehold, legally or equitably, under a deed, or 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 any 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, Com. 245.

The rule has been abrogated by statute in most of the states, and in those where it still prevails, the disposition is to restrict, rather than enlarge, its operation, because it so frequently defeats the expressed intention of the grantor or testator. The language of the rule confines it to cases where the ancestor takes an estate of freehold and there is a limitation "to his heirs in fee or in fee tail," and it is an extension of the rule to apply it to a limitation to "issue" or "issue of the body" or "bodily issue," which are not ex vi termini within the rule (Daniel v. Whartenby, 84 U.S. [ [17 Wall.] 664, 21 L.Ed. 661; Timanus v. Dugan, 46 Md. 402), and which when used in relation to property are susceptible of three meanings: (1) As describing a class who are to take as joint tenants or tenants in common with those named; (2) as descriptive of a class who are to take at a definite and fixed time as purchasers; (3) as denoting an indefinite succession of lineal descendants who are to take by inheritance (23 Cyc. 359; Mendenhall v. Mower, 16 S.C. 303), but when used in the latter sense as an indefinite succession of lineal descendants, who are to take by inheritance, they have been frequently held to be words of limitation, and not of purchase, and to give to the first taker a fee under the rule, although Mr. Fearne says (page 149) that the word "issue" "has not the same established legal import and extent" as "heirs," and on page 495, that a "devise of a term to A. for life, and afterwards to his issue, it seems, does not enlarge the estate of A., but after his death the whole rests in the issue." The cases construing the terms "issue," "issue of the body," "bodily issue," are collected in Words and Phrases, vol. 4, p. 3782 et seq., and it will also be found from an examination of these and other authorities that there is much difference of opinion as to the method of approaching the construction of the language when used in deeds and wills, some courts holding that the primary meaning of "issue" is a succession of lineal descendants, and that this interpretation must be given to the term unless a contrary intent appears, while others, when dealing with the rule in Shelley's Case, which they are not disposed to extend, and having in mind that the word "issue" is "more flexible" than the word "heirs" (Daniel v. Whartenby, supra) and may be applied to those who take by purchase, hold that it must clearly appear that it was the intention to use the term as one of limitation to denote a succession of lineal descendants who are to take by inheritance before that construction will be adopted. The latter view seems to prevail in this state. Smith v. Proctor, 139 N.C. 322, 51 S.E. 889, 2 L. R....