Price v. Griffin

• Decision Date: 21 April 1909
• Citation: 64 S.E. 372,150 N.C. 523
• Parties: PRICE et al. v. GRIFFIN et ux.
• Court: North Carolina Supreme Court

64 S.E. 372

150 N.C. 523

PRICE et al. v. GRIFFIN et ux.

Supreme Court of North Carolina

April 21, 1909

Appeal from Superior Court, Wayne County; Neal, Judge.

Action by B. A. Price and others against G. O. Griffin and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

One's heirs are his surviving descendants, capable of inheriting.

M. T Dickerson and H. L. Stevens, for appellants.

Isaac F. Dortch, F. A. Daniels, and Aycock & Winston, for appellees.

WALKER J.

This is an action for the partition of land. In March, 1879, Jesse Price, Sr., who was then the owner of the land in controversy, conveyed the same by deed to his son, John C Price, during the term of his lifetime, and at his death to his surviving heirs, reserving to Jesse Price, Sr., the grantor, an estate for life in the land. Jesse Price, Sr. died in 1879, and John C. Price on January 15, 1883, conveyed the land by deed to W. P. Price in fee simple. John C. Price died on April 6, 1906, leaving as his heirs four children, B A. Price, E. H. Price, A. B. Price, and Bettie Pearsall, who are the plaintiffs, and W. P. Price, Lewis H. Price, John T. Price, and C. D. Price. The defendant G. O. Griffin has acquired the interest of W. P. Price and C. D. Price by deeds duly executed to him in 1884, before this proceeding was commenced. If the deed from Jesse Price, Sr., to John C. Price conveyed a fee-simple estate to the latter, the plaintiffs are not entitled to recover, so that the only question in the case is whether it conveyed a fee or only a life estate with remainder to his children surviving him. The difficulty presented in the cases arises from the use of the word "surviving" prefixed to the word "heirs," but we do not think this is sufficient to render inapplicable the rule in Shelley's Case to this limitation. It is said that, as one of the principal reasons for establishing this rule was to prevent the abeyance or suspension of the inheritance, it only applied to those limitations in which the word "heirs" (or some equivalent word of inheritance) is used on account of the maxim, "Nemo est haeres viventis." As under this maxim no one can be heir to a living person, the word "heirs" must necessarily refer to those who survive the ancestor, and the word "surviving" therefore is mere surplusage, just as we have held that the word "lawful" in a limitation to the "lawful heirs" of a person has no significance and does not restrict the ordinary meaning of the word "heirs." Wool v. Fleetwood, 136 N.C. 460, 48 S.E. 785, 67 L. R. A. 444.

In Criswell's Appeal, 41 Pa. 288, Judge Strong (afterwards a justice of the Supreme Court of the United States), for the court, said: "It is said there could be no other heirs than such as were living at the death of the ancestors; that the words 'then living' would be superfluous, unless the testator intended children by 'heirs'; and that, in order to give meaning to those words, the technical words of limitation must give way, and be treated as only a description of persons. We are not convinced by the argument. Let it be admitted that the words 'then living' are strictly of no legal meaning, when applied to heirs, this is no sufficient reason for holding that the testator in the use of technical words of limitation intended to depart from their ordinary legal meaning. It is not so easy to overcome the presumption. The words 'heirs' and 'heirs of the body' will retain their significance, though the effort be to make unmeaning other words in the will not technical, and even though there may be inconsistent expressions. If the words are repugnant, why should the word 'heirs' give way, rather than the words 'then living'? In the will of an unlettered man, however, they can hardly be called repugnant. Lawyers may understand that there are no heirs of a living person, or that the phrase 'living heirs' is a superfluous addition to a gift to heirs; but laymen may not." He adds that the books are full of cases in which it has been held that superfluous expressions in a will do not suffice to reduce the words "heirs" or "heirs of the body" into words of purchase, so as to make them the root of a new inheritance, or the stock of a new descent or descriptio personarum. Chancellor Kent (4 Kent's Comm. [13th Ed.] 226) says that Mr. Hargrave in his observations on the rule is for giving it a most absolute and peremptory obligation. "He considered that the rule was beyond the control of intention when a fit case for its application existed. It was a conclusion of law of irresistible efficacy, when the testator did not use the words 'heirs' or 'heirs of the body' in a special or restrictive sense, for any particular person or persons who should be the heir of the tenant for life at his death, and in that instance inaptly denominated 'heir,' and when he did not intend to break in upon and disturb the line of descent from the ancestor, but used the word 'heirs' as a nomen collectivum for the whole line of inheritable blood. It is not nor ought to be in the power of a grantor or testator to prescribe a different qualification to heirs from what the law prescribes when they are to take in their character of heirs; and the rule in its wisdom and policy did not intend to leave it to the parties to decide what should be a descent and what should be a purchase."

The heirs of a man are his descendants who survive him and are capable of inheriting at the time of his death. At no other time can it be ascertained who his heirs will be. They may be his lineal descendants, or those only who are related to him collaterally. Hardage v. Stroope, 58 Ark. 306, 24 S.W. 490. In the case of Watts v. Clardy, 2 Fla 389, 390, where the limitation...