Reid v. Neal

• Decision Date: 19 October 1921
• Docket Number: 59.
• Citation: 108 S.E. 769,182 N.C. 192
• Parties: REID ET UX. v. NEAL.
• Court: North Carolina Supreme Court

108 S.E. 769

182 N.C. 192

REID ET UX. v. NEAL.

No. 59.

Supreme Court of North Carolina

October 19, 1921

Appeal from Superior Court, Wilson County; Connor, Judge.

Submission of controversy without action by H. S. Reid and wife, as plaintiffs, and Oscar Neal, as defendant. From a judgment for plaintiffs, defendant appeals. Reversed.

In the absence of an effective residuary clause, a lapsed or void legacy or devise will go to the next of kin, or to the heirs of the testator, as in case of intestacy.

H. S Reid and wife, Laura Reid, and Oscar Neal, desiring to submit a question in difference, which might be the subject of a civil action, have agreed upon the following statement of facts, upon which the controversy depends, and present the controversy for submission to this court for determination:

(1) Laura Reid is the daughter of Ishmael Wilder, and H. S. Reid is her husband.

(2) Ishmael Wilder died domiciled in the county of Wilson, N. C in February, 1917, having first made and published his last will and testament, by the third item of which he devised to his daughter, Laura Reid, certain lands, the following being a true and correct copy thereof, to wit: "I lend to my daughter, Laura Reid, 59 1/2 acres, the remainder of my land to include the house where Joe Barnes now lives, to her during her natural life, and at her death, I give it to her bodily heirs, if any, and if none, to return to my estate." The said last will and testament after having been duly proven according to law was admitted to probate and recorded in Book of Wills No. 6, p. 1, in the office of the clerk of the superior court of Wilson county.

(3) That no other item or part of said will deals in any manner with the lands devised unto Laura Reid, and there is no residuary clause therein.

(4) That, after the death of Ishmael Wilder, the devisees caused the lands to be surveyed by J. T. Revell, surveyor, on April 20, 1920, and the lands devised unto Laura Reid by the third item of said last will and testament are described as follows:

"Beginning at a stake, C. E. Brame's corner, and runs thence N. 3~ E. 283 poles to a stake, H. G. Wilder's corner; thence N. 87~ W. 33 1/2 poles to a stake in Hinnant's line, H. G. Wilder's corner; thence S. 3~> W. 283 poles to a stake in Brame's line; thence 87~ E. 33 1/2 poles to the beginning, containing 59 1/2 acres, as surveyed by Jont T. Revell."

(5) That H. S. Reid and his wife, Laura Reid have contracted and agreed to sell the said 59 1/2 acres of land to Oscar Neal, and Oscar Neal has agreed to purchase the same and to pay therefor the sum of $10,000, upon the tender to him of a good and sufficient deed, conveying unto him the said lands in fee simple.

(6) That H. S. Reid and wife, Laura Reid, have tendered unto the said Oscar Neal a deed, properly executed, conveying the said lands unto him and demanding the payment of the purchase price, according to the terms of the contract, but the said Oscar Neal declines to accept the said deed and pay the purchase price.

(7) H. S. Reid and wife, Laura Reid contend that, under the terms of the will of Ishmael Wilder, the said Laura Reid is seized in fee simple of the said land. Oscar Neal contends that, under the terms of the will of Ishmael Wilder, the said Laura Reid is not seized of a fee-simple estate therein, and she and her husband cannot convey the same to him in fee simple.

Wherefore the said parties submit to this court the determination of the question in difference between them, and if the said court shall be of the opinion that the said Laura Reid is seized of a fee-simple estate in and to the said lands, then judgment shall be rendered by the said court requiring the said Oscar Neal to accept the said lands and pay the purchase price according to the contract; but if the court shall be of opinion that the said Laura Reid is not seized of fee-simple estate in said lands, then judgment shall be rendered accordingly.

His honor, Judge George W. Connor, rendered the following judgment:

This controversy without action coming on to be heard before the undersigned resident judge of the Second judicial district, in which the county of Wilson is located, upon the agreed statement of facts submitted, and it appearing to the court that the said agreed statement of facts is properly verified under the statute and, after giving the matter consideration, the court being of the opinion that Laura Reid is seized in fee simple of the lands devised unto her by the last will and testament of Ishmael Wilder, it is, therefore, upon motion of Connor and Hill, attorneys for H. S. Reid and wife, Laura Reid, ordered, decreed, and adjudged that the said Oscar Neal accept a deed tendered to him by the said H. S. Reid and wife, Laura Reid, and pay unto them purchase price agreed upon, to wit, $10,000, and the costs of this proceeding to be taxed by the Clerk.

The defendant excepted and appealed.

E. J. Barnes, of Wilson, for appellant.

Connor & Hill, of Wilson, for appellees.

ADAMS J.

In February, 1917, Ishmael Wilder died domiciled in the county of Wilson, having made his last will and testament which has been duly proved and probated. Item 3 is as follows:

"I lend to my daughter Laura Reid, 59 1/2 acres, the remainder of my land, to include the house where Joe Barnes now lives, to her during her natural life, and at her death, I give it to her bodily heirs, if any, and if none, to return to my estate."

The plaintiffs contend that the devise over--"to return to by estate"--is void; that the word "estate" refers, not to persons, but to the condition or circumstances in which the testator stood with reference to his property--the nature and extent of his interest; that there is confusing uncertainty as to the persons who might succeed to the title upon the failure of the feme plaintiff's "bodily heirs," and that the devisee, Laura Reid, has an estate in fee simple under the rule in Shelley's Case. It therefore becomes necessary to decide whether the rule in Shelley's Case applies, and, if it does not, to construe the devise under which the feme plaintiff claims title to the land.

This noted rule, a prolific source of litigation, is stated by Coke as follows:

"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.

In Kent's Commentaries, as a citation of Preston's definition, the rule is given in this language:

"Where a person takes an estate of freehold, legally or equitably, under a deed, or 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 any interest of the same legal or equitable quality to his heirs, or 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." 4 Kent, Com. 215.

It is held with practical unanimity that the principle stated is not a rule of construction, but a rule of law. If the language used in a particular instrument brings the case within the operation of the rule, the intention of the grantor or devisor does not control.

In Nobles v. Nobles, 177 N.C. 245, 98 S.E. 715, Justice Hoke, speaking for this court, said:

"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."

This court has had occasion from time to time to construe divers instruments in which the language used bears striking similarity to the language in the devise under consideration. Recourse to former adjudications may, in the present instance, serve to direct us to the correct conclusion.

In Francks v. Whitaker, 116 N.C. 518, 21 S.E. 175, the devise was in these words:

"I give and devise (real estate) to my beloved son E. S. Francks, during his natural life, and after his death to his lawful heir or heirs, should he have any surviving him, but should he not have any lawful heir or heirs surviving him, then I give and devise the same to the children of my beloved son W. W. Francks."

The court held that the proper construction of the will is as if it read: "I give and devise to my beloved son E. S. Francks, during his natural life, and after his death to his issue, should he leave any surviving him, but should he not leave issue then I give and devise the same to the children of my beloved son W. W. Francks."

In Bird v. Gilliam, 121 N.C. 327, 28 S.E. 489, the devise was:

"To my daughter Mary during her natural life and give the same to the heirs of her body, but if my daughter Mary should not have no lawful heirs of her body the said land at her death shall go back to my son William and the heirs of his body."

The court said:

"The rule in Shelley's Case does not apply here. If there had been no words explanatory of the words 'heirs of her body' in connection with the estate devised to...