Turpin Et Al.

• Court: North Carolina Supreme Court
• Writing for the Court: BARNHILL, Justice.DEVIN, Justice
• Citation: Turpin Et Al., 37 S.E.2d 124, 226 N.C. 135 (N.C. 1946)
• Decision Date: 06 March 1946
• Docket Number: No. 162.,No. 18.,18.,162.
• Parties: TURPIN et al. v. JARRETT et al. In re SMITH'S ESTATE.

37 S.E.2d 124

226 N.C. 135

TURPIN et al.

v. JARRETT et al.In re SMITH'S ESTATE.

No. 18.

No. 162.

Supreme Court of North Carolina.

Feb. 27, 1046.

March 6, 1946.

Appeal from Superior Court, Jackson County; J. A Rousseau, Judge.

Action in ejectment and to remove cloud on title by James H. Turpin, and others against Mrs. M. Y. Jarrett and another. From an adverse judgment, plaintiffs appeal.

Affirmed.

Civil action in ejectment and to remove cloud on title.

The case was heard on facts agreed which are in substance as follows:

On June 29, 1885, John Messer and wife conveyed a tract of land in Jackson County to Jane Messer. The granting clause contains no words which undertake to limit or define the estate conveyed, but the habendum clause is "to the said Jane Messer and her bodily heirs", and immediately following the warranty clause there was inserted the following: "Provided, however, that if the said Jane Messer should die without issue after her death the lands mentioned in this deed is to descend to her brothers and sisters and this is to be her full share of our estate." The grantors reserved a life estate. John Messer and wife each died prior to March 21, 1911. There was born to Jane Messer one son, Charlie Messer, who predeceased her but left surviving him a widow and five or six children who are grandchildren and great-grandchildren of Jane Messer. On March 21, 1911, Jane Messer conveyed to Mrs. M. Y. Jarrett, one of the defendants, the locus in quo, a part of the tract described in the John Messer deed, and she has been in the sole possession thereof since that date. Jane Messer died February 14, 1941.

While not so stipulated it is treated as a fact that the plaintiffs are the persons named in the limitation over.

The plaintiffs allege that they are the owners of the property and the claim of the defendant Mrs. Jarrett casts a cloud upon their title. They pray judgment that they are the owners of the property described in the complaint, free and clear of any claim of defendants.

The parties waived trial by jury and submitted the cause on the facts agreed. Thereupon the court adjudged that the defendant Mrs. M. Y. Jarrett is the owner and entitled to possession of the property in controversy, free and clear of any claim of plaintiffs. Plaintiffs excepted and appealed.

M. V. Higdon, of Sylva, and R. L. Phillips, of Robbinsville, for appellants.

Hugh E. Monteith, E. P. Stillwell, and Dan K. Moore, all of Sylva, for appellees.

BARNHILL, Justice.

On this record the rule in Shelley's case is not controlling. Matthews v. Matthews, 214 N.C. 204, 198 S.E. 663; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662; Paul v. Paul, 199 N.C. 522, 154 S.E. 825; Willis v. Mutual Loan & Trust Co., 183 N.C. 267, 111 S.E. 163; Ford v. McLrayer, 171 N.C. 420, 88 S.E. 736; Dawson v. En-nett, 151 N.C. 543, 66 S.E. 566; Harrell v. Hagan, 147 N.C. 111, 60 S.E. 909, 125 Am. St.Rep. 539; Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 34 A.L.R. 952.

The deed to Jane Messer conveyed a base or qualified fee, defeasible upon her death without "bodily heirs" or "issue", upon the happening of which event plaintiffs would become seized and possessed of the title under the limitation over. Smith v. Ellington-Guy Lumber Co., 155 N.C. 389, 71 S.E. 445; Hutchinson v. Lucas, 181 N.C. 53, 106 S.E. 150; Thompson v. Humphrey, 179 N.C. 44, 101 S.E. 738; Willis v. Mutual Loan & Trust Co., supra, James v. Griffin, 192 N.C. 285, 134 S.E. 849: West v. Murphy, 197 N.C. 488, 149 S.E. 731.

To determine the effectiveness of the limitation over the roll must be called as of the date of the death of the first taker. It is so declared by statute. Chap. 7, P.L.1827, now G.S. § 41-4; Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401 (citing 26 prior decisions); Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Smith v. Ellington-Guy Lumber Co., supra; Rees v. Williams, 164 N.C. 128, 80 S.E. 247; Willis v. Mutual Loan & Trust Co., supra; Vinson v. Gardner, 185 N.C. 193, 116 S.E. 412; Dupree v. Daughtridge, 188 N.C. 193, 124 S.E. 148; American Yarn Co. v. Dewstoe, 192 N.C. 121, 133 S.E. 407; Massengill v. Abell, 192 N.C. 240, 134 S.E. 641; Henderson v. Western Carolina Power Co., 200 N.C. 443, 157 S.E. 425, 80 A.L.R. 497; Hudson v. Hudson, 208 N.C. 338, 180 S.E. 597; Moseley v. Knott, 212 N.C. 651, 194 S.E. 100; Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485.

So then we come to the primary question posed by this appeal: Do the terms "bodily heirs" and "issue" as used in the deed include lineal descendants other than children? Our decisions answer in the affirmative.

"Bodily heirs", when used as de-scriptio personarum, and "issue" are synonymous terms connoting and embracing children, grandchildren, and other lineal descendants. Matthews v. Matthews, supra; Harrell v. Hagan, supra; Bowden v. Lynch, 173 N.C. 203, 91 S.E. 957; Albright v. Albright, 172 N.C. 351, 90 S.E. 303; Pugh v. Allen, 179 N.C. 307, 102 S.E. 394; Willis v. Mutual Loan & Trust Co., supra; Hampton v. Griggs, supra; Moseley v. Knott, supra; Brown v. Holland, 221 N.C. 135, 19 S.E.2d 255; Elledge v. Parrish, 224 N.C. 397, 30 S.E.2d 314. For cases in other jurisdictions see 22 Words and Phrases Perm.Ed., p. 742 et seq. See also 5 Words and Phrases, Perm.Ed., p. 583 et seq.

Discussing the question in Matthews v. Matthews, supra , we said: "The term 'bodily heirs' * * * is more comprehensive than the term children, and means progeny or issue, and includes children, grandchildren and other lineal descendants. It is true that in some of the cases in which this term is interpreted when used as descriptio person-arum, it is said that it means children. However, an examination of those cases will disclose that only children were concerned and no grandchildren were involved."

The court below, it is true, held that upon the birth of Charlie Messer the condition in the deed was fulfilled and, non constat he predeceased Jane Messer, she thereupon became seized in fee absolute, but this was harmless error. She left surviving grandchildren. Hence the event--• death without issue--upon the happening of which plaintiffs were to take, never occurred. Thus they possess no interest in or claim to the property in controversy.

The conclusion that the grantors intended to convey a fee, defeasible only upon death without lineal descendant, is fortified by the circumstances of the conveyance as disclosed by the language in the deed. The consideration was love and affection. The property was conveyed as an advancement in satisfaction of the grantee's interest in the estate of her parents. It was to descend to the other children of grantors only in the event the grantee died without issue. Thus they wrote into the deed just what the law provides.

No reason is apparent why the grantors should cut the succession in the interest of other children and deprive the grandchildren of Jane Messer of the privilege of transmitting the inheritance. On the contrary, it clearly appears that they intended that title to the property should remain in Jane Messer's line of descent in the event there was anyone in that line to take at her death.

As her title, at her death, ripened into a fee absolute and her deed is binding upon her heirs, Thames v. Goode, supra, Woody v. Cates, 213 N.C. 792, 197 S.E. 561, the defendants, on their affirmative plea, were entitled to a decree that they are now the owners of the locus free of any claim of plaintiff. The court below so held.

The judgment is affirmed.

226 N.C. 169

Supreme Court of North Carolina.

Appeal from Superior Court, Hertford County; Q. K. Nimocks, Jr., Judge.

Proceedings in the matter of the estate of Dr. John W. Smith, deceased, wherein Mrs. Harriot B. Smith filed a dissent from the will of the deceased. From an order directing that her dissent from the will be stricken from the record, Mrs. Harriot B. Smith appeals.

Error and remanded.

From an order directing that her dissent from the will of John W, Smith be stricken from the record, Mrs. Harriot B. Smith appealed.

The pertinent facts were these: John W. Smith died testate in Hertford County February 25, 1945, and his will was probated March 1, 1945, wherein he named A. W. Greene, clerk of the Superior Court of Hertford County, and H. H. Foster as executors.

August 21, 1945, Elbert S. Peel, attorney for appellant, presented to Judge Nimocks holding the courts of the third Judicial District at Halifax, N. G, the written dissent from said will by Mrs. Harriot B. Smith as the widow of John W. Smith, and thereupon it was ordered that said dissent, together with the authorization therefor, be filed of record in the Superior Court of Hertford County. The dissent was filed in accordance with the order.

August 27th A. W. Greene, one of the executors, filed exception to the order of Judge Nimocks on the ground (1) that the order was signed without notice to executors and devisees of the testator, and (2) that John W. Smith had been divorced a vinculo by judgment of the Superior Court in Martin County in September 1944. Notice was given appellant's attorney of this motion, to be heard October 1st by Judge Nimocks.

September 29th Mrs. Harriot B. Smith filed in the Superior Court of Martin County a motion to set aside the divorce judgment for want of proper service, and for fraud in attempting to secure a divorce without notice to her, in a county other than that of the residence of plaintiff John W. Smith or his wife, where neither of them were known, and by a publication which did not give her legal or actual notice. A meritorious defense to the divorce action was alleged. The motion had been verified by appellant June 19, 1945, but notice was not given to executors and...