Jarvis v. Wyatt

• Decision Date: 31 December 1825
• Court: North Carolina Supreme Court
• Parties: JARVIS ET AL,. v. WYATT.

11 N.C. 227

JARVIS ET AL,.

v.WYATT.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1825.

1. A. devises lands to J. W. and his wife during their lives, and to the longest liver of them, and also bequeaths to them certain slaves, etc., for their lives as aforesaid; and after their decease he gives said property, real and personal, unto the heirs of their bodies lawfully begotten, to be equally divided among them, to them and their heirs forever. J. W. and wife are tenants for life only, and the heirs of their bodies take an estate in fee in the lands in remainder as purchasers. The remainder is contingent, and, on the decease of the surviving donee for life, vests in such persons as are heirs of the bodies of J. W. and wife. A child, therefore, of J. W. and wife, who dies in the lifetime of the surviving donee, had no estate in the lands.

2. According to the intent of the testator, the personal property, on the decease of the surviving donee for life, goes over with the lands to the remaindermen ; the heirs of the body of J. W. and wife take an absolute property in the personalty on the decease of the surviving donee for life, and the executor or assignee of a child of J. W. and wife, dying before the wife, has no interest in the personalty.

THIS bill was filed in 1823 for foreclosure of a mortgage. Ambrose Knox, by bis will duly executed, devised the use and occupation of four-fifths of his plantation, etc., to John Wyatt and Parthenia, his wife, during their natural lives, and to the longest liver of them; and he also bequeathed to them the use of certain slaves and their increase during their natural lives as aforesaid; and further, during their lives as aforesaid, the use of all his stock and household furniture and plantation utensils of whatever kind now in their possession; and after their decease he gives and bequeaths all and singular the property, both real and personal, above mentioned (for their use during their lives) unto the heirs of their bodies lawfully begotten, to be equally divided among them, to them and their heirs forever. The testator died in 1796. Upon his death, John Wyatt entered upon the lands, and had possession of the personalty until 1802, when he died; his widow, surviving him, took possession of the real and personal estate, and continued itduring her life. In 1804, William Wyatt, one of the children of John and Parthenia, by deed mortgaged to the complainants all his interest in the lands and slaves mentioned in the above devise and bequest. William Wyatt died in 1817, and was survived by his mother, Parthenia, who departed this life in 1821. The bill was filed against the defendants, who were the children of William Wyatt, and were his heirs and distributees. On the death of Parthenia, they had taken possession of the land and slaves mentioned in the mortgage; they were the heirs of the body of John and Parthenia, and by their answers insisted that William Wyatt had nothing in the premises in 1804 when he executed the mortgage, and that on the death of Parthenia the lands belonged to them, either under the will of Ambrose Knox or by descent from Parthenia, and that the slaves were their property either under the said will or as the distributees of Parthenia. The sole question in the case was whether William Wyatt had, in 1804, any interest in the lands and slaves. The court below being of opinion that he had not, dismissed the bill of the complainants with costs, from which they appealed.

TAYLOR, C. J. That the testator intended John Wyatt and his wife to have no more than the enjoyment of the subject devised, during their lives and that of the longest liver, seems evident from the terms he uses in the will. He "lends the use and occupation" of the plantation to them "during their natural lives, and to the longest liver," and he "leaves them the chattel property during their lives as aforesaid";thus showing his wish that they should be restrained from the power of disposing of the land, so as to defeat the ulterior devise to their

heirs. He then provides that after their decease all the property thus given shall go to the heirs of their bodies lawfully begotten, to be equally divided among them and their heirs forever.

It is argued on the part of the defendants that whatever the testator's intent might have been, yet the legal operation of the devise was to give an estate for life to John Wyatt and his wife, and an immediate remainder to their heirs, and that in such a case the rule in Shelley's case applies, and vests in the ancestors an estate in fee simple.

I think it evident that the words "heirs of their bodies,"'as used in this will, were designed to secure the estate in the first place to the descendants of John and Parthenia, and to make their issue the stock or root of the future succession, since if they had both died without leaving such issue, it would have contravened the intent of the testator to suffer the property to devolve on their collateral heirs. Upon the death of the devisees it would have vested in their lineal descendants as tenants in common, but the design of the will having taken effect, it would be an absolute estate in such children or grandchildren, descendible to their heirs general.

According to the authorities, "heirs of the body" have been held to be words of purchase, when the testator hath superadded fresh limitations, and grafted other words of inheritance upon the heirs to whom he gives the estate, thereby showing that those heirs were meant by the testator to be the stock of a new descent. Where the heirs are thus made ancestors it is evident that the terms "heirs of the body" are merely descriptive of the persons intended to take, and import such sons and daughters of the tenant for life as shall also be heirs of his body. This exception to the rule in Shelley's case is well established by the casesreferred to, particularly Archer's case, 1 Rep., 55, and Lisle v. Gray and Lowe v. Davies.

Although it appears plain to my apprehension that the heirs take as purchasers, yet I think it unnecessary to say much more on this point, because it can make no difference in the decision of the cause, since in neither case could William Wyatt become entitled to anything during the lifetime of his parents.

There are not on the face of the will any sufficient indications that the testator meant to use the word "heirs" in any other than its technical sense, that is this, those who should answer the description upon the death of the ancestor, until which event it must be unknown who would be his heirs. On the contrary, the will devises it to the heirs after the decease of the father and mother, and it is consequently a contingent remainder to those who should be heirs of the body on the death of the survivor. As the real and personal estate are disposed of by the same words, the construction must be the same in both, and no part of either vested in

William Wyatt. The husband and wife had a...