Ward v. Stow

• Court: North Carolina Supreme Court
• Writing for the Court: GASTON
• Citation: Ward v. Stow, 17 N.C. 509 (N.C. 1834)
• Decision Date: 30 June 1834
• Parties: LEVI WARD v. LARKIN STOW ET AL.

17 N.C. 509

LEVI WARD

v.LARKIN STOW ET AL.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1834

A testator bavins directed that "the residue of my estate, real and personal, be divided amongst the heirs of my brother I., the heirs of my sister N., and the heirs of my sister S. and nephew L.," it was held, the testator having recognized I. as being alive, that the word "heirs" was used as a description of legatees only, and not in its appropriate technical sense, as denoting the succession, and that the individuals of the several classes of children were entitled equally per capita.

NATHAN FORD, by his will, devised and bequeathed as follows:

"I give and bequeath to my brother, John Ford, 200 acres of land, including where the said John now lives, during his natural life, and at his death the said land to fall to his heirs, the said John Ford's children.

"I give and bequeath to my nephew, Levi Ward, my sorrel horse called Merlin, and my negro boy named Dick, to him and his heirs forever.

"It is my will, and I do allow, that all the remaining part of my estate, both real and personal, be equally divided amongst the heirs of my brother, John Ford, the heirs of my sister Nancy Stow, the heirs of my sister Sally Ward, and my nephew, Levi Ward."

At the death of the testator, his brother John and his sister Nancy were living—the former having four and the latter nine children. Sally Ward was dead at the date of the will, having left two children, both of whom survived the testator, and of whom Levi Ward, the plaintiff and legatee, was one.

A petition for the partition of the land of which the testator died seized was filed in Lincoln, and a final judgment was entered thereon, whereby one-fourth thereof was assigned to each of the families, to be divided among them, excluding Levi Ward from any share of the fourth assigned to the family of his mother, and giving him the remaining fourth. Upon an appeal to the Supreme Court, this judgment was reversed, and a division per capita directed (Stow v. Ward, 10 N. C., 604). Instead of remanding the cause and awarding a procedendo to the court below, a writ of partition was issued from this Court, and upon its return the order reversing the judgment below was set aside and another writ of partition issued, directing the division to be per stirpes, including Levi Ward and giving him in addition thereto one clear fourth. Stow v. Ward, 12 N. C., 67. And on the return of this writ, judgment of confirmation was entered. After the first division above mentioned, the legatees, supposing it conclusively to settle their rights under the will, made a voluntary division of the negroes and other personal property according to the principle which was thereby established. When the last division was set aside and one per stirpes directed, the

plaintiff filed this bill, in which he averred that the voluntary division of the personal property was made under a mistake, and prayed to have it set aside and another division made according to the last adjudication.

The case was frequently argued and held under advisement for several terms.

GASTON, J. The inquiries which this case presents are exceedingly unpleasant, but so far as the purposes of justice require, they must be prosecuted to their legitimate result. The first of these inquiries is, whether the division complained of and sought to be reformed be erroneous or correct. On the part of the complainant it is insisted that the last adjudication of the Court must be regarded as conclusively settling the construction of the will with respect to the real estate, and, by necessary inference, fixing its construction also as to the personal property. It is also insisted that if the interpretation of the will can be considered as open to discussion, the reasons on which that adjudication is founded completely sustain it. Upon this point the argument is briefly this: that where persons come to an estate as heirs, whether by descent or by purchase, under that description, they take per stirpes andnot per capita, in a representative character and not as individuals, and to others must be always considered as an unit, however they may subdivide and parcel out the property among themselves. That if A. dies intestate, seized of lands of inheritance, leaving a daughter and two daughters of a deceased daughter, his lands descend one-half to his daughter and the other half to his granddaughters, and that if a devise should be made to them simply as the heirs of A., they must take the estate in the same proportions; that in the first case the canons of descent ascertain the heirs and direct the disposition of the land, and that in the latter case the will gives to those whom the canons ascertain to be the heirs, and in such proportions as the canons direct. It is thus concluded from the force of the word heirs that the persons indicated in the will as the heirs of John, Nancy, and Sally are to be regarded as the representatives of, and substitutes for, John, Nancy, and Sally, respectively, and taking the same shares as if the land had been given to these persons, and then transmitted to them as the successors of these ancestors; and that a similar result must take place with respect to the personal property, first, because it was obviously the intent of the testator to give both species of property to the same persons, in the same way, and, secondly, because the word heirs as applied to personal property means heirs quoad that property, that is to say,

those whom the statute of distributions directs to succeed to the personal estate of an intestate.

None can be more deeply convinced than we are of the necessity of a steady adherence to the decisions of our predecessors. Carelessness in this respect can scarcely fail to involve us in error and throw the law into confusion. So far as the decisions of these eminent judges concur with each other, they form a law for this Court, which nothing short of what we may reasonably hope cannot happen—a manifest breach of the law of the land—can warrant us to disregard. Where they are found to conflict, which from the imperfections of all human institutions must sometimes be the case, the latest will of course be presumed right, yet not so conclusively right as to forbid examination. In the present singular case, however, it is somewhat difficult to saywhich of the two opposing decisions has the better claims to be regarded as the precedent; for while the one is the more recent, the other has the advantage of having been unanimous; of having been decided upon argument, and of being a judgment in a case regularly and properly before the Court. Convinced that we ought not to rely authoritatively and exclusively on the last adjudication, we have deemed it an imperious duty deliberately to investigate the argument by which it is supposed to be established.

The whole of the reasoning is founded on the effect which the word heirs is supposed to produce in the devising and bequeathing clause. An heir is he who succeeds by descent to the inheritance of an ancestor, and in this, its appropriate sense, the word comprehends all heirs, and the heir of heirs ad infinitum, as they are called by law, to the inheritance. This succession is regulated by the canons of descent. According to one of these, the lineal descendants of any person deceased represent their ancestor, or stand in the place in which such ancestor would have stood if living at the time of the descent cast, and it is this taking by a right of representation which is termed a succession per stirpes or by stocks, the branches taking the same share which their stock would have taken. From this definition it would seem to follow that in strictness none can come to an estate as heirs otherwise than by descent. Thus Lord Thurlow says in Jones v. Morgan, 1 Brown, 209: "All heirs taking as heirs must take by descent." Upon this ground he holds the rule inflexible which requires that when a freehold is given to one and a remainder is so limited as to go in succession to the heirs of the first taker, these shall take by descent, because "taking in the character of heirs, they must take with the quality of heirs"—that is to say, must take by descent and not by purchase. But an inheritance may be limited in remainder to the heirs of him to whom a precedent freehold is not given, or it may be originally limited to the heirs of a deceased person. Here thedonees do not take by descent, for their ancestor has no estate which the word "heirs" can expand into an estate of inheritance. They do not, therefore, take as heirs, but take simply as purchasers.

But it is insisted for the plaintiff that, nevertheless, they are described as "heirs"; that the law of descents is necessarily referred to for the understanding of that term, and the ascertainment of the persons thereby intended; and, therefore, this law is to regulate also the shares in which the thing given is to be enjoyed by those on whom it is bestowed.

With the highest respect for those who have drawn this inference, we are compelled to say that we do not feel its force. Every voluntary disposition of property takes effect according to the agreement of the contracting parties. Their intentions, properly expressed, give the mode and the form that constitute the law of the conveyance. The regulations of the State for the transmission of inheritances left vacant by death do not, proprio vigore, operate on the subject-matter of such conveyances, and can apply to them only so far as the parties have adopted them and directed them to be so applied. When a technical phrase is deliberately used, it is reasonable to suppose that it is employed in the sense appropriated to it in the science or art from which it has been taken, and that science or art is very properly consulted for its interpretation. "Heirs" is a well-known term in the law of descents, and when donees or devisees are not otherwise described than as heirs, the law is impliedly...