Massengill v. Abell

• Decision Date: 06 October 1926
• Docket Number: 92.
• Parties: MASSENGILL v. ABELL.
• Court: North Carolina Supreme Court

134 S.E. 641

192 N.C. 240

MASSENGILL v. ABELL.

No. 92.

Supreme Court of North Carolina

October 6, 1926

Appeal from Superior Court, Johnston County; Sinclair, Judge.

Action by Nathan A. Massengill against J. H. Abell. Judgment for plaintiff, and defendant appeals. Reversed.

H. V Rose, of Smithfield, for the appellant.

Leon G Stevens, of Smithfield, for the appellee.

ADAMS J.

This case was heard and determined upon an agreed statement of facts. Junius v. Massengill died in 1918, leaving a last will and testament, the fourth item of which is in these words:

"I give and bequeath to my son, Nathan A. Massengill and his heirs, and if no heirs at his death to return to his nearest relations the following tract or parcel of land lying south of the road, between the land given to my son, Robbie T. Massengill, and my daughter Lena Massengill."

As to the location or identity of the land, there is no controversy. Nathan A. Massengill was unmarried when the will was probated, but he has married since that time and now has a living child. In February, 1926, he contracted to sell and convey the devised land to the defendant at the agreed price of $3,000, and afterwards tendered a conveyance therefor duly executed by himself and his wife, with full covenants and warranties, but the defendant refused to accept the deed for the alleged reason that the plaintiff could not convey an indefeasible title in fee. Whether the plaintiff, with the joinder of his wife, can convey a title in fee simple is the question for decision.

It will be observed that in this item of the will the word "heirs" twice appears, and this fact proposed the initial inquiry whether in each instance the word is to be given the same meaning. It is an approved rule of construction that, if a particular significance be attached by the testator to a word or phrase in one part of his will, the same meaning will be presumed to be intended by him in the subsequent use of the same word or phrase; but the presumption does not obtain where a contrary intent appears. Taylor v. Taylor, 174 N.C. 537, 94 S.E. 7. Here such contrary intent does appear. That the devise to Nathan A. Massengill and his heirs conveys the fee is not open to debate, for, obviously the word "heirs" is first used in its strict technical sense; but is this the sense in which it is used in the phrase "if no heirs at his death"? We think not. A limitation to the heirs of a living person, if on contrary intention appear in the deed or will, will be construed to be to the children of such person. C. S. § 1739. But this is not a limitation to the heirs of a living person, but a limitation over, if there be no heirs at the death of the first taker, and the word "heirs" in this phrase, as we shall hereafter point out, means "issue"-the devise to be construed as if it read, "I give and bequeath to my son Nathan A. Massengill and his heirs and if no issue at his death;" that is, if he have no "issue" living at his death.

If the son acquired a fee, when is the ulterior limitation to become effective? Let it be noted that the testator did not annex to the devise a condition restraining alienation (Latimer v. Waddell, 119 N.C. 370, 26 S.E. 122, 3 L. R. A. [N S.] 668), or limit a fee upon a fee with power of disposition in the first taker; but he limited a fee upon a fee by "cutting down the first in order to make room for the second." Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. The principle is familiar. A devise to A. and his heirs, to be void if A. have no child living at his death, leaves in the devisor some interest which he may give to a third person, and in the disposition of such interest, under the doctrine of springing and shifting uses, a fee may be limited after a fee (Willis...