Nobles v. Nobles

• Decision Date: 26 March 1919
• Docket Number: 170.
• Citation: Nobles v. Nobles, 177 N.C. 243, 98 S.E. 715 (N.C. 1919)
• Parties: NOBLES v. NOBLES ET AL.
• Court: North Carolina Supreme Court

98 S.E. 715

177 N.C. 243

NOBLES v. NOBLES ET AL.

No. 170.

Supreme Court of North Carolina

March 26, 1919

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

Action by Osborne C. Nobles, Sr., against Stephen F. Nobles and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Devise to O. for life, and then to his legal representatives, gives him a fee simple, under the rule in Shelley's Case "legal representatives" being used as synonymous with "heirs of the body."--

The action was to remove a cloud on the title of plaintiff claiming to own the land in fee simple under a devise in his mother's will as follows:

"Item 1. I give and devise to my son, Osborne C. Nobles, the home in which I now live, together with all the buildings and one-half of the tract of land on which they are situated during his lifetime, then to his legal representatives;"

the other half of the land having been devised, one-fourth each to Stephen F. and John C. Nobles. That, in 1910, Stephen F. and John C. Nobles, and plaintiff, Osborne C. Nobles, made an attempt to divide same, and executed deeds to each other in pursuance of their agreement, and on the theory that Osborne C. had a fee-simple interest in the portion of land divided to him. Question having been raised as to the fee-simple title of O. C. Nobles, with a view of perfecting the division and mutually assuring the title, a proceeding was instituted, and partition was made by commissioners duly appointed by the court, and in which the share of O. C. Nobles was allotted to "him and his legal representatives." It was contended and claimed by defendants, children of O. C. Nobles, that their father, under the devise, only had a life estate in the property, and that said defendants owned the remainder in fee.

There was judgment for plaintiff, and defendants excepted and appealed.

F. C. Harding, of Greenville, for appellee.

HOKE J.

In Setterwhite v. Gallagher, 173 N.C. 528, 92 S.E. 370, speaking to the proper interpretation and effect of our statutes now controlling in actions of this character to remove a cloud from the title, the court said:

"Having reference to the board and inclusive language of the statute, the mischief complained of, and the purpose sought to be accomplished, we are of opinion that the law, as its terms clearly import, was designed and intended to afford a remedy wherever one owns or has an estate or interest in real property, whether he is in or out of possession, and another wrongfully sets up a claim to an estate or interest therein which purports to affect adversely the estate or interest of the true owner, and which is reasonably calculated to burden and embarrass such owner in the full and proper enjoyment of his proprietary rights, including the right to dispose of the same at its fair market value. And it should and does extend to such adverse and wrongful claims, whether in writing or parol, whenever a claim by parol, if established, could create an interest or estate in the property, as in case of a parol trust or a lease not required to be in writing. And it should be allowed, too, when existent records or written instruments reasonably present such a claim, the statute preventing all hardship in such cases by its provision that if the holder does not insist on the same in his answer or does not answer at all the plaintiff shall pay the costs."

And in same volume, Smith v. Smith, 173 N.C. 124, 91 S.E. 721, the principles so stated were applied to a case like the present, where the father, claiming to own the land in fee, was allowed to maintain a suit against the children, who asserted that he only had a life estate in the property, with the remainder to his said children.

Coming, then, to the principal question, we concur in his honor's view that the devise in his mother's will, "to my son Osborne C. Nobles the home and buildings and one-half the land for his lifetime, and then to his legal representatives," confers upon the devisee a fee-simple estate in the property under the rule in Shelley's Case. The principles of this notable case have been discussed and applied in several of our later decisions, and the rule appearing in Coke's Reports and Preston on Estates is given, respectively, as follows:

"That, when an ancestor by any gift of 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' is a word of limitation of the estate, and not a word of purchase." 1 Coke, 104.

And in Preston on Estates:

"When a person takes an estate of freehold legally or equitably under a deed, 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 an interest of the same legal or equitable quality to his heirs or the 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."

So stated, the rule in question has always been recognized with us, and a perusal of these and other like cases will disclose that, when the terms of the instrument, by correct interpretation, convey the estate in remainder to the heirs of the first taker as a class "to take in succession from generation to generation," to the same persons as those who would take as inheritors under our canons of descent, and in the same quantity, the principle prevails as a rule of property, both in deeds and wills, and regardless of any particular intent to the contrary otherwise appearing in the instrument. Crisp v. Biggs, 176 N.C. 1, 96 S.E. 662; Cohoon v. Upton, 174 N.C. 88, 93 S.E. 446; Ford v. McBrayer, 171 N.C. 421, 88 S.E. 736; Robeson v. Moore, 168 N.C. 389, 84 S.E. 351, L. R. A. 1915D, 496; Jones v. Whichard, 163 N.C. 241, 79 S.E. 503; Price v. Griffin, 150 N.C. 523, 64 S.E. 372, 29 L. R. A. (N. S.) 935; May v. Lewis, 132 N.C. 115, 43 S.E. 550; Nichols v. Gladden, 117 N.C. 497, 23 S.E. 459. It will be noted that in both Coke and Preston, supra, the words "heirs or heirs of the body" are used in defining the estate in remainder; but in the case of wills, and in courts and instruments which permit and recognize other words as their equivalent and as descriptive of all those who will take in succession by reason of their hereditable blood, such words are not essential, and the rule is effective where the equivalent of heirs or heirs of the body are used in defining the estate in remainder. In the very full discussion of the subject by my Lord Macnachten, appearing in Gruten v. Foxwell, Appeal Cases, L. R. 1897, 658 (case of a will), after stating the rule as given in Coke's Rep., on pages 667-669, he proceeds as follows:

"Every part of that statement is, I think, deserving of attention from the opening words, which declare the rule to be 'a rule of law,' to the last clause, which says, 'the heirs can never take by purchase in a case where the rule applies.' It is hardly necessary to observe that any expression which imports the whole

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