Jones v. Whichard

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J
• Citation: Jones v. Whichard, 163 N.C. 241, 79 S.E. 503 (N.C. 1913)
• Decision Date: 01 October 1913
• Parties: JONES et al. v. WHICHARD et al.

79 S.E. 503

(163 N. C. 241)

JONES et al.

v.WHICHARD et al.

Supreme Court of North Carolina.

Oct. 1, 1913.

Appeal from Superior Court, Pitt County; Allen, Judge.

Agreed case by R. E. Jones and others against Jarvis Whichard, C. F. Page, and another. From a judgment for the plaintiffs and a codefendant, the defendant Page appeals. Affirmed.

On the hearing it was made to appear: That in August, 1866, Major Jones made a deed to his son, R. M. Jones, etc., for 40 acres of land, in terms as follows: "This indenture made this the 11th day of August, A. D. 1866, between Major Jones of the first part and Robert M. Jones of the second part both of the county of Pitt and state of North Carolina: Witnesseth, that the said Major Jones, for and in consideration of natural love and affection which he has unto the said Robert M. Jones, his son, has given, granted, aliened, released and confirmed, and by these presents do give, grant, alien, release and confirm unto the said Robert M. Jones, his heirs and assigns, a certain tract or parcel of land situate as follows: * * * To have and to hold the said tract or parcel of land and all the appurtenances thereof to him, the said Robert M. Jones and Martha F. Jones, his wife, during their natural life, and then to their legal bodily heirs, provided they leave any, and if not, to be equally divided among my nearest of kin." etc. That on November 27, 1900, said R. M. Jones made a deed for the land to his wife for life, remainder to seven of his nine children, and not including a son, S. L. Jones, or a daughter, Huldah, intermarried with C. F. Page. That Huldah Page had issue born alive, a son, and she and son died before R. M. Jones and wife, and these last having also died, present suit was instituted for sale of land for division. Plaintiffs are the seven children of R. M. Jones and wife, who were grantees in the deed of R. M. Jones to his wife, etc. Defendants are S. L. Jones, another son, and C. F. Page, surviving husband of Huldah. On these facts it was contended for plaintiffs that, under the rule in Shelley's Case, the deed from Major Jones conveyed a fee simple, and that when R. M. Jones conveyed the property to his wife for life and remainder to seven of their children, plaintiffs, the deed passed the entire interest, and defendants were thereby excluded. Defendant S. L. Jones, contended that the deed of Major Jones conveyed only a life estate, remainder to his children or issue in the sense of children or grandchildren, and that he, as one of them, was entitled to a child's interest. It was insisted for C. F. Page that the deed from Major Jones conveyed a life estate to R. M. Jones and wife, remainder to their issue, in the sense of children and grandchildren, and that this remainder was vested in such children, and that on the death of his wife, Huldah, leaving an infant son, her interest descended to such son, and on his death without issue and without brother or sister the share passed to C. F. Page, the father, under 6 Canon Descent, Revisal, c. 30. The court below, being of opinion that the deed of Major Jones conveyed a life estate, remainder to the children and grandchildren, contingent on their surviving their parents, entered judgment that defendant S. L. Jones was entitled to a share in the fund and that C. F. Page was excluded; his son having died before R. M. Jones and wife. From this judgment said C. F. Page, having duly excepted, appealed.

Julius Brown, of Greenville, for appellant.

Harding & Pierce, of Greenville, and Ward & Grimes, of Washington, N. C, for appellees.

HOKE, J. (after stating the facts as above). [1, 2] A very full and satisfactory statement of the rule in Shelley's Case is given in Preston on Estates as follows: "When a person takes an estate of freehold, legally or equita-bly, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without 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." In approval and illustration of the rule, as stated, there are many decisions here and elsewhere to the effect that, in order to its proper application, the words "heirs" or "heirs of the body" (these last by reason of our statute, Revisal, § 1578) must be used in their technical sense, carrying the estate to such heirs as an entire class, to take in succession from generation to generation, and they must have the effect to convey "the same estate to the same persons, whether they take by descent or purchase, " and, whenever it appears from the context or from a perusal of the entire instrument that the words were not intended in their ordinary acceptation as words of inheritance, but simply as a descrlptio personarum designating certain individuals of the class, or that the estate is thereby conveyed to "any other person in any other manner or in any other quality than the canons of descent provide, " the rule in question does not apply, and interest of the first taken will be as it is expressly described an estate for life. Puckett v. Morgan, 158 N. C. 344, 74 S. E. 15; Smith v. Proctor, 139 N. C. 314, 51 S. E. 889, 2 L. R. A. (N. S.) 172; Wool v. Fleetwood, 136 N. C. 460-470, 48 S. E. 785, 67 L. R. A. 444; May v. Lewis, 132 N. C. 115, 43 S. E. 550; Whitesides v. Cooper, 115 N. C. 570, 20 S. E. 295; Mills v. Thorne, 95 N. C. 362; Ward v. Jones, 40 N. C. 404.

In the recent and well-considered case of Puckett v. Morgan, supra, the language of the instrument was: "To M. * * * during her life, then to her bodily...