Mills v. Thorne

• Court: North Carolina Supreme Court
• Writing for the Court: ASHE
• Citation: Mills v. Thorne, 95 N.C. 362 (N.C. 1886)
• Decision Date: 31 October 1886
• Parties: ELIZABETH MILLS v. H. R. THORNE AND WIFE.

95 N.C. 362

ELIZABETH MILLS

v.H. R. THORNE AND WIFE.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

This was a CIVIL ACTION, tried before Philips, Judge, at the Fall Term, 1886, of WILSON Superior Court, upon the following case agreed:

Gray Lodge, of the county of Wilson, died in January, 1881, leaving a last will and testament, dated November 3d, 1866, which was duly proven and admitted to probate, that portion of said will which is material to this cause being in these words: “After all my just debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit: To my beloved wife, all the land I now possess, known as the Odom tract of land, lying on Frank's branch, adjoining the lands of Benjamin Simpson and Bartley Deans and others, together with all my stock and other property of anything whatsoever, as I am now possessed of, during her life time, and after her death, for my sister, Prissy Little, her or her heirs, to share and share equally with my wife's heirs.”

One child was born to Gray and Rebecca Lodge, who died during the late war, leaving no issue.

At the date of Gray Lodge's will, he was sixty years old, Rebecca, his wife, fifty years old. Prissy Little is now living. Rebecca Lodge, wife of Gray Lodge, died in the month of January, 1885, devising all her estate of every description to Louisa Shavers, now Louisa Thorne, wife of H. R. Thorne, and defendant in this action, who together with her said husband, H. R. Thorne, under said devise, took possession of the said Odom tract of land bequeathed by the aforesaid Gray Lodge as aforesaid, and are now in possession of the same.

Elizabeth Mills and Ann Smith, together with others, are the lawful heirs of Rebecca Lodge.

If from this statement of facts, the Court shall find that Rebecca Lodge had an estate for life only in said land, it is agreed that the plaintiffs have judgment for possession of same with damages. But if the Court shall find that Rebecca Lodge had an estate in fee simple in said land, or one-half thereof, then the defendants to have judgment against plaintiffs for costs in this action.

His Honor gave judgment in favor of the defendants.

From this judgment the plaintiffs appealed.

Mr. John Devereux, Jr., for the plaintiffs .

Mr. John F. Bruton, for the defendants .

ASHE, J. (after stating the facts).

The question to be decided in this case is, whether the rule in Shelly's case applies. The rule is: “That when the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance, an estate is limited, either mediately or immediately to his heirs in fee or in tail, the word heirs are words of limitation of the estate, and not words of purchase.” 1 Coke, 104. Without deciding the question whether the rule has been abolished by statute in this State, if we should consider the case solely in view of English adjudications, we would unhesitatingly hold that it did apply. In England, ever since the leading case of Jepson v. Wright, 2 Bligh., 1, it has been held, that the words “equally to be divided,” or “share and share alike,” superadded to limitations to the heirs of the body, &c., do not prevent the application of the rule. But in this State, it would seem that the superaddition of like words to the limitation to the heirs, or heirs of the body, or issue, do prevent the application of the rule.

In Ward v. Jones, 5 Ired. Eq., 400, the devise, (since the act of 1784), was to A for life, and should he have lawful issue, then to be equally divided between his lawful issue, but should he not have lawful issue, then, it was held, that A took only a life estate in the land. PEARSON, J., who delivered the opinion of the Court, said: “The will in the case under consideration, was made in the year 1778, and unless the acts of 1784 alter the law, it is clear that A took an estate tail, which by the act of 1784, ch. 204, was converted into a fee-simple. We think the acts of 1784 do alter the law, and that in all devises of land, made since that time, the words ‘ to be equally divided,’ prevent the application of the rule in Shelly's case, and the first taker has only an estate for life.” He proceeds to say: “The rule in Shelly's case only applies when the same persons will take the same estate, whether they take by descent or purchase, in which case they are made to take by descent, it being more favorable to dower, to the feudal incidents of seignories, and to the right of creditors, that the first taker should have an estate of inheritance; but when the person taking by purchase would be different, or would have different estates, than they would take by descent from the first taker, and the rule does not apply, and the first taker is confined to an estate for life, and the heirs, heirs of the body, or issue in wills, take as purchasers. The words, ‘ to be equally divided between the issue,’ include different persons than simply the word issue when used as a word of descent. For in the latter case, the person or...