Puckett v. Morgan

• Court: North Carolina Supreme Court
• Writing for the Court: BROWN, J.
• Citation: Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15 (N.C. 1912)
• Decision Date: 13 March 1912
• Parties: PUCKETT v. MORGAN.

74 S.E. 15

158 N.C. 344

PUCKETT v. MORGAN.

Supreme Court of North Carolina

March 13, 1912

Appeal from Superior Court, Franklin County; Ferguson, Judge.

Action by F. A. Puckett against James Morgan to recover possession of land. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

The word "heirs," as used in a devise for life, with remainder over, held to mean "children," and that the devisee did not, therefore, take the fee under the rule in Shelley's Case.

W. H Yarborough, Jr., for appellant.

W. M Person, for appellee.

BROWN J.

In 1890, William Pace, the maternal grandfather of the plaintiff, died, leaving a will containing the following clause: "Item. I leave Martha Morgan, the wife of James Morgan, 48 1/2 acres of land, known as the Rachael tract, on the east side, during her life, then to her bodily heirs, if any; but if she have none, back to her brothers and sisters." Martha Morgan died in 1894, leaving two daughters, of whom the plaintiff is one, she having since intermarried with P. H. Puckett. James Morgan, the husband of Martha Morgan, is still living and in possession of the land aforesaid, to recover which this suit is brought, claiming that he is entitled to a life estate in it as tenant by the curtesy.

The judge below was of opinion that under the "rule in Shelley's Case" Mrs. Morgan took an estate in fee and consequently her husband, the defendant, would be entitled, as tenant by the curtesy, to the possession of the land during his life. It is needless to quote this ancient rule of law, so familiar to every student. The original case was tried in the reign of Queen Elizabeth, and is reported in 1 Coke, Rep. 104a, and the statement of the rule there given is the one most generally adopted by text-writers.

While this dogma of the common law has been expounded and applied in hundreds of cases and by as many judges and text-writers, it seems to be generally agreed that, in order to bring the rule into operation, the subsequent estate must be limited to the heirs, qua heirs, of the first taker. It must be given to the heirs or heirs of the body as an entire class or denomination of persons, and not merely to individuals embraced within such class. The rule applies only when the word "heirs," or "heirs of the body," are used in their technical sense. Where such terms are used as mere descriptio personarum, the rule has no application.

It is conceded that the rule in Shelley's Case is a rule of law, and not of construction; yet whether the subsequent limitation is to the "technical heirs" of the person taking the prior freehold, or to a particular class of heirs, is necessarily a preliminary question of construction of the particular instrument under consideration. Parkhurst v. Harrower, 142 Pa. 432, 21 A. 826, 24 Am. St. Rep. 507.

As said by the Supreme Court of Pennsylvania: "To bring a devise within the rule in Shelley's Case, the limitation must be to the heirs in fee or tail as nomen collectivum for the whole line of inheritable blood." McCann v. McCann, 197 Pa. 452, 47 A. 743, 80 Am. St. Rep. 846. While this rule seems to be applied with greater strictness in England than in this country, even there, when it appears from the context of the instrument that the words are used, not in the technical sense, but as mere description personæ, they are taken as words of purchase, and not of inheritance, and the rule does not apply. Theobald on Wills, 340-342, and cases there cited.

This principle is commented upon by Judge Gaston in these expressive words: "On the other hand, as the law will not entrap men by words incautiously used, if, in the limitation of a remainder by any instrument or conveyance, the phrase 'heirs' or 'heirs of the body' be expressed, but it is unequivocally seen that the limitation is not made to them in that character, but simply as a number or class of individuals thus attempted to be described, then the whole force of the phrase is restricted to this designation or description; it shall have the same operation as the words would have of which it is the representative; there is not in fact a limitation to 'heirs,' and, of course, there is no room for the application of the rule." Allen v. Pass, 20 N.C. 212.

This principle is recognized by Chief Justice Shepherd, in his often cited and learned opinion in Starnes v. Hill, 112 N.C. 18, 16 S.E. 1016 (22 L. R. A. 598), when he says "As the courts are astute in discovering the intention from the context of the conveyance, and readily give effect to every word from which such intention can reasonably and...