Ray v. Ray, 691

• Decision Date: 20 June 1967
• Docket Number: No. 691,691
• Citation: 270 N.C. 715,155 S.E.2d 185
• Court: North Carolina Supreme Court
• Parties: Rosalie Eugenia Stier Calvert RAY, Executrix of the Will of Rosalie Eugenia Stier Calvert, and Rosalie Eugenia Stier Calvert Ray, Individually, v. David Randolph RAY, George Calvert Ray and any other children who may hereafterbe born to Rosalie Eugenia Stier Calvert Ray, and James MacRae, Guardian adLitem.

Page 185

155 S.E.2d 185

270 N.C. 715

Rosalie Eugenia Stier Calvert RAY, Executrix of the Will of

Rosalie Eugenia Stier Calvert, and Rosalie Eugenia

Stier Calvert Ray, Individually, v. David Randolph RAY, George Calvert Ray and any other

children who may hereafterbe born to Rosalie

Eugenia Stier Calvert Ray, and James

MacRae, Guardian adLitem.

No. 691.

Supreme Court of North Carolina.

June 20, 1967.

Maupin, Taylor & Ellis, Raleigh, for plaintiff appellee.

MacRae, Cobb & MacRae, Fayetteville, for defendant appellants.

SHARP, Justice.

Whenever applicable, the rule in Shelley's case applies to both real and personal property in this jurisdiction. Riegel v. Lyerly, 265 N.C. 204, 143 S.E.2d 65; Chappell v. Chappell, 260 N.C. 737, 133 S.E.2d 666; Martin v. Knowles, 195 N.C. 427, 142 S.E. 313; Welch v. Gibson, 193 N.C. 684, 138 S.E. 25; Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 34 A.L.R. 952; Starnes v. Hill, 112 N.C. 1, 16 S.E. 1011, 22 L.R.A. 598. There are many statements of the rule. One, approved by the Court in Martin v. Knowles, supra, 195 N.C. at 429, 142 S.E. at 313, is:

'The rule in Shelley's case says, in substance, that if an estate of Freehold be limited to A., with Remainder to his heirs, general or special, the remainder, although importing an independent gift to the heirs, as original takers, shall confer the inheritance on A., the ancestor.'

The question posed by this appeal is whether the rule applies to Article 2 of Mrs. Calvert's will, the substance of which is: I give all my estate to my daughter R for life, to do with as she desires, then to the heirs of her body, if any; but if she should predecease me without heirs of the body, then to 14 nieces and nephews subsequently named.

The final clause in the devise was a substitutional gift to testatrix' nieces and nephews in the event the primary object of her bounty, Mrs. Ray, should predecease her without heirs of her body. Whitley v. McIver, 220 N.C. 435, 17 S.E.2d 457; Early v. Tayloe, 219 N.C. 363, 13 S.E.2d 609. '(G)ifts are said to be substitutional when provision is made for someone to take the gift in the event of the death of the original beneficiary before the period of distribution. * * * Words of substitution become inoperative by the vesting of the gift, devise, or bequest in the primary taker.' 96 C.J.S. Wills § 737 (1957). Therefore, when Mrs. Ray survived testatrix, the substitutional clause was eliminated, leaving the devise to Mrs. Ray, 'to do with as she so desires during her lifetime, and at her death to the heirs of her body, if any. * * *'

Had the final phrase, if any, been omitted from the devise, we surmise that defendants would not have questioned the applicability of the rule in Shelley's case. A devise to A for life and at her death to the heirs of her body presents a classic case for its application. Hammer v. Brantley, 244 N.C. 71, 92 S.E.2d 424; Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404; Helms v. Collins, 200 N.C. 89, 156 S.E. 152; Bradley v. Church, 195 N.C. 662, 143 S.E. 211; Merchants National Bank v. Dortch, 186 N.C. 510, 120 S.E. 60; Daniel v. Harrison, 175 N.C. 120, 95 S.E. 37. See Block, The Rule in Shelley's Case in North Carolina, 20 N.C.L.Rev. 49, 64 (1941). By such a devise the rule in Shelley's case, and the doctrine of merger, give A an estate tail which G.S. 41--1 converts into a fee simple. In re Will of Wilson, 260 N.C. 482, 133 S.E.2d 189. Defendants contend, however, that when testatrix used the words Heirs of her body, she was not using the term in its unrestricted technical sense as the lineal descendants of her daughter 'who, from generation to generation become entitled by descent under the entail.' Black's Law Dictionary (4th Ed., 1951) 856; In re Will of Wilson, supra. On the contrary, they argue that she used the term descriptio personae, referring to the children or issue of her daughter who might be living at the daughter's death; that she did not mean successive generations of children, each generation of which should take under the entail. When the term Heirs of the body is used in its technical sense, it imports a class of persons to take indefinitely in succession, from generation to generation. Donnell v. Mateer, 40 N.C. 7.

From their premise that testatrix did not use Heirs of the body in its technical sense, defendants argue, therefore, that the rule in Shelley's case is inapplicable, for, unless the language of the instrument discloses that the words Heirs or Heirs of the body were used to designate an indefinite line of succession from generation to generation, the rule is irrelevant. Wright v. Vaden, 266 N.C. 299, 146 S.E.2d 31. In support of this contention, defendants rely upon Rollins v. Keel, 115 N.C. 68, 20 S.E. 209; Francks v. Whitaker, 116 N.C. 518, 21 S.E. 175; Sain v. Baker, 128 N.C. 256, 38 S.E. 858; Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15; Pugh v. Allen, 179 N.C. 307, 102 S.E. 394; Hampton v. Griggs, supra; Welch v. Gibson, supra. In his opinion in Welch v. Gibson, supra, 193 N.C. at 691, 138 S.E. at 28, Stacy, C.J., stated the rule of these cases as follows:

'When there is an ulterior limitation which provides that, upon the happening of a given contingency, the estate is to be taken out of the first lines of descent and then put back into the same line, in a restricted manner, by giving it to some, but not to all, of those who presumptively would have shared in the estate as being potentially among the heirs general of the first taker, this circumstance may be used as one of the guides in ascertaining the paramount intention of the testator, and, with other indicia, it has been held sufficient to show that the words 'heirs' or 'heirs of the body' were not used in their technical sense.'

The foregoing statement points up the distinction between the instruments construed in those cases and Mrs. Calvert's will. In each of the foregoing cases, the Court concluded that the author of the instrument had used the word Heir or Heirs, bodily heirs, or Heirs of the body, to mean children or issue (thereby eliminating the application of the rule in Shelley's case) because there was an ulterior limitation over to a restricted class of heirs of the first taker or life tenant upon his death without 'heirs' or 'heirs of the body.'

The rule of construction enunciated in Welch v. Gibson, supra, can have no application to Article 2 of Mrs. Calvert's will because it contains No limitation over in the event Mrs. Ray should die without heirs of her body After the death of testatrix. Testatrix' nieces and nephews, although cousins of Mrs. Ray and therefore presumptively among her heirs general, were to take only in the event Mrs. Ray died without heirs of the body before Mrs. Calvert's death.

This case is controlled by Glover v. Glover, 224 N.C. 152, 29 S.E.2d 350, wherein the plaintiff devised title to land under a deed 'to him his lifetime, and at his death to his heirs, if any.' In holding that the conveyance invoked the rule in Shelley's case and vested the fee in the plaintiff, this Court said: 'The use of the phrase 'if any,' following the word 'heirs,' may not...