Wallace v. Wallace

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J.
• Citation: Wallace v. Wallace, 181 N.C. 158, 106 S.E. 501 (N.C. 1921)
• Decision Date: 30 March 1921
• Docket Number: 113.
• Parties: WALLACE ET AL. v. WALLACE ET AL.

106 S.E. 501

181 N.C. 158

WALLACE ET AL. v. WALLACE ET AL.

No. 113.

Supreme Court of North Carolina

March 30, 1921

Appeal from Superior Court, Johnston County; Devin, Judge.

Special proceedings to sell land for partition by W. H. Wallace and others against Ashley Wallace and others and against Selina Wallace as the widow of C. A. Wallace, deceased. From a judgment declaring the defendants other than the widow to be the owners of the property as tenants in common, petitioners and the widow appeal. Affirmed.

In a deed giving a life estate with remainder to bodily heirs or if none, to next of kin, the words "next of kin" mean those nearest in degree and do not recognize or permit the principle of representation, so that the property vests in the living brothers and sisters on the death of life tenant without issue, to the exclusion of the children of deceased brothers and sisters.

In a deed conveying the remainder to the next of kin of the life tenant, the expression "next of kin" means nearest of blood kin, so that the wife of the life tenant is not entitled to a share of the remainder.

Special proceedings to sell land for partition, transferred on answers filed to the superior court and heard on case agreed before his honor, W. A. Devin, Judge, at September term 1920, of the superior court of Johnston county. The facts pertinent to the inquiry and his honor's judgment thereon are set forth in the case on appeal as follows:

"It was agreed by all the parties thereto, Abell and Ward representing the petitioners, Wellons and Wellons representing the defendant Selina Wallace, and Parker & Martin representing the defendants other than Selina Wallace, that this case be heard upon the following agreed facts, to wit:

(1) That C. A. Wallace died without birth of issue, and that Selina Wallace is the widow, and that the petitioners and other defendants, except Selina Wallace, are the brothers and sisters of the said C. A. Wallace, deceased, and the representatives of dead brothers and sisters.

(2) That the defendants Ashley Wallace, Elisha Wallace, and R.I. Wallace are and were at the time of the death of the said C. A. Wallace his only surviving brothers or sisters; and that all of the petitioners are the representatives and children of deceased brothers and sisters of the said C. A. Wallace; and if the lands described in the petition descend to his heirs at law, then their respective interests are as set out in the petition.

(3) That on February 25, 1889, Elisha Wallace and wife executed to their son, C. A. Wallace, deceased, a deed for the 62 1/2 acres of land described in the petition, which deed is duly recorded in Book S, No. 5, at page 280 of the office of the register of deeds of Johnston county, a copy of which deed is hereto attached, marked 'Exhibit A,' and made a part thereto.

(4) On June 27, 1919, the said C. A. Wallace made a last will and testament which was duly probated on August 23, 1919, and is recorded in Will Book No. 6 at page 529 of the office of the clerk of the superior court of Johnston county, a copy of which will is hereto attached, marked 'Exhibit B,' and made a part thereof.

(5) The petitioners contend that they, together with the defendants, except the said Selina Wallace, widow, are the owners as tenants in common in the aforesaid lands under and by virtue of the aforesaid deed to C. A. Wallace.

(6) That the defendants Ashley Wallace, Elisha Wallace, and R.I. Wallace, contend that they are the owners of said lands as the only surviving brothers and sisters, and being the next of kin of the said C. A. Wallace, deceased.

(7) That the defendant Selina Wallace contends that she is the sole owner of said lands by virtue of said will of the said C. A. Wallace, deceased.

(8) That this agreement of facts shall not interfere with the dower of the said Selina Wallace, provided, if in law she is entitled to the same."

The portion of the deed, Exhibit A, relevant to the inquiry, is as follows:

"This indenture made 25 day of February, 1889, between Elisha Wallace and wife, Penny Wallace, of the county of Johnston and state of North Carolina of the first part, and C. A. Wallace of the same county and state above written of the second part, witnesseth, that we, Elisha Wallace and wife, do, for and in consideration of the love and good will that we have for our son, C. A. Wallace, and for his better support, do by these presents loan and set over unto him, the above said C. A. Wallace, one tract or parcel of land to have and to hold during his natural lifetime, with the exception that we, the above said Elisha Wallace and wife, hold the above said land subject to our support and protection during our natural life. And then after the death of the above said C. A. Wallace, then said land to descend in fee simple to his bodily heirs if any, and if none, to go to his next of kin," etc.

In the will of said C. A. Wallace, Exhibit B, the land is devised to his widow, Selina H. Wallace, for life, and at her death to the children of R.I. Wallace. And upon these facts the court rendered judgment:

"This cause coming on to be heard before Hon. W. A. Devin, Judge Presiding, at the September term, 1920, of the superior court of Johnston county, N. C., and being heard upon the pleadings and an agreed statement of facts, Abell & Ward representing the petitioners, Wellons & Wellons representing the defendant Selina Wallace, Parker & Martin representing the defendants Ashley Wallace, Elisha Wallace, and R.I. Wallace, and S. S. Holt representing the defendant Elisha Wallace, upon the motion of Parker & Martin and S. S. Holt.

"It is considered, ordered, adjudged, and decreed that the defendants Ashley Wallace, Elisha Wallace, and R.I. Wallace are the sole owners in fee as tenants in common and are entitled to the immediate possession of the lands described in the petition in this cause."

From this judgment the petitioners, the nephews and nieces and the widow, Selina Wallace, appealed.

Ed. S. Abell and Ed. F. Ward, both of Smithfield, for appellants.

Parker & Martin and S. S. Holt, all of Smithfield, for appellees.

HOKE J.

The deed of Elisha Wallace to his son, C. A. Wallace, conveys the land in question to said C. A. Wallace, "to have and to hold during his natural lifetime subject to a life support for the grantors and after the death of C. A. Wallace, the land is to descend in fee simple to his bodily heirs if any and if none to go to his next of kin." The grantee having devised the property to his widow, remainder to the children of R.I. Wallace in fee, it becomes necessary to determine what is the nature and extent of the estate conveyed; the widow insisting that her husband took a fee-simple estate under the rule in Shelley's Case. In numerous decisions of the court, many of them of recent date, this rule has been recognized as existent in this state, and it is held that when a limitation comes under this principle, it operates as a rule of property passing a fee simple both in deeds and wills, and regardless of a contrary intent on the part of the grantor. In Nobles v. Nobles, 177 N.C. 245, 98 S.E. 716, the principle referred to is stated as follows:

"So stated, 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"--citing Crisp v. Biggs, 176 N.C. 1, 96 S.E. 662; Cohoon v. Upton, 174 N.C. 88, 93 S.E. 446; Ford v. McBrayer, 171 N.C. 421, 88 S.E. 736; Robeson v. Moore, 168 N.C. 389, 84 S.E. 351, L. R. A. 1915D, 496; Jones v. Whichard, 163 N.C. 241, 79 S.E. 503; Price v. Griffin, 150 N.C. 523, 64 S.E. 372, 29 L. R. A. (N. S.) 935; May v. Lewis, 132 N.C. 115, 43 S.E. 550; Nichols v. Gladden, 117 N.C. 497, 23 S.E. 459.

And the same position is approved and impressively illustrated in Leathers v. Gray, 101 N.C. 163, 7 S.E. 658, 9 Am. St. Rep. 30, overruling same case in 96 N.C. 548, 2 S.E. 455, and where the rule as understood and more frequently presented and applied in this jurisdiction is thus stated by Merrimon, Judge:

"That, whenever an ancestor by any gift or conveyance took an estate of freehold (an estate for life), and in the same gift or conveyance an estate is limited either mediately or immediately to 'his heirs,' or to the 'heirs of his body,' as a class, to take in succession as heirs to him, such words are words of limitation of the estate, and convey the inheritance (the whole property) to the ancestor, and they are not words of purchase."

From these and other authorities it will be noted that in order to an application of the rule in Shelley's Case (being contrary as it is to the expressed will of the grantor that the first taker should have a life estate only), the word "heirs" or "heirs of the body" must be taken in their technical sense carrying the estate to the entire line of heirs and at this time and in this jurisdiction to hold as inheritors under our canons of descent, and if it appears by correct construction that these words are not used in that sense, but only as words designating certain persons or confining the inheritance to a restricted class of heirs, the rule does not apply and the ancestor or first taker will be held to have acquired only a life estate according to the express words of the instrument.

Thus in the case of ...