Welch v. Gibson

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, C.J.
• Citation: Welch v. Gibson, 193 N.C. 684, 138 S.E. 25 (N.C. 1927)
• Decision Date: 11 May 1927
• Docket Number: 469.
• Parties: WELCH et al. v. GIBSON et al.

138 S.E. 25

193 N.C. 684

WELCH et al. v. GIBSON et al.

No. 469.

Supreme Court of North Carolina

May 11, 1927

Appeal from Superior Court, Mecklenburg County; Finley, Judge.

Controversy without action brought by Garnett Jones Welch and husband against Charles Gibson and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Devise for life, with remainder to devisee's bodily heirs as entailed property, with an "equal share" to her children devised contingent remainders in equal shares to children per capita.

Controversy without action submitted on an agreed statement of facts.

Plaintiffs being under contract to convey a certain lot of land to the defendant Charles Gibson, duly executed and tendered a deed therefor and demanded payment of the purchase price as agreed, but the said defendant declines to accept the deed and refuses to make payment of the balance of the purchase price, claiming that the title offered is defective.

It was agreed that if, in the opinion of the court, under the facts submitted, the plaintiffs were able to convey a good and indefeasible fee-simple title to the lot in question judgment should be entered for the plaintiffs; otherwise for the defendant.

The court, being of opinion that the plaintiffs were not able to convey a good and sufficient fee-simple title, gave judgment for the defendants, from which the plaintiffs appeal assigning error.

Preston & Ross, of Charlotte, for appellants.

F. R. McNinch, of Charlotte, for appellees Mary S. Hager and A. B. Hager.

STACY C.J.

On the hearing, the sufficiency of the title offered was properly made to depend upon the construction of the following provision in the will of Mary M. Kennedy:

"I will and bequeath to my daughter, Garnett Jones Welch, all of my property, both personal and real, for the term of her natural life, and at the death of my said daughter, Mrs. Welch, all this property so devised shall go to the bodily heirs of Mrs. Welch, and to go as entailed property for succeeding generations; all living children at the death of the said Mrs. Welch are to have an equal share in this property during the term of their lives, and shall go to the heirs of these said legatees from generation to generation forever. No wood shall be sold off this place, and only such wood shall be cut during the lifetime of the said Mrs. Welch, or the minority of her youngest children, only so much as may be necessary for firewood for the house, and for the cooking stove."

The fact situation is that Mary M. Kennedy died testate in 1914, leaving an only daughter, Mrs. Garnett Jones Welch, coplaintiff with her husband herein, who now has seven living children, four of whom are infants, and none of whom are parties to this controversy, save the defendant Mary S. Hager, who was made a party at her own request, and who claims an interest in the land under her grandmother's will.

The plaintiffs claim that Mrs. Garnett Jones Welch acquired a fee-simple title to all her mother's real estate under the above provision of her will, and that the deed tendered is sufficient to convey a good and indefeasible fee-simple title to the lot described therein, while the defendant Charles Gibson, as well as his codefendant, Mary S. Hager, contends that the feme plaintiff, under the above provision of her mother's will, takes only a life estate in the property so devised.

It is conceded that the relative merits of the controversy depend upon whether or not the limitations in the above clause of the will of Mary M. Kennedy to the heirs or heirs of the body of her daughter, Mrs. Garnett Jones Welch, are so framed as to attach the rule announced in the celebrated English case of Wolfe v. Shelley, 1 Coke, 93b, commonly known as the rule in Shelley's Case, which, with us, has become a rule of property as well as a rule of law, and is stated by Mr. Preston, an eminent English authority, as abridged by Chancellor Kent in his Commentaries (4 Kent Com. 215), as follows:

"When a person takes an estate of freehold, legally or equitably, under a deed, 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 an 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." 1 Prest. Est. 263.

This definition was quoted with approval in Smith v. Proctor, 139 N.C. 314, 51 S.E. 889, 2 L. R. A. (N. S.) 165, 11 Am. St. Rep. 791.

The origin of the rule, as well as the wisdom of its adoption, has been the subject of much curious and learned speculation. Though found among the remains of feudality, it is neither a relic of barbarism nor a part of the rubbish of the dark ages, but rather a Gothic column, as it were, which has been preserved to aid in sustaining the fabric of our modern social system. Nichols v. Gladden, 117 N.C. 497, 23 S.E. 459; Starnes v. Hill, 112 N.C. 1, 16 S.E. 1011, 22 L. R. A. 598; note, 29 L. R. A. (N. S.) 963; Daniel v. Bass, 193 N.C. 294, 136 S.E. 733; Foley v. Ivey, 193 N.C. 453, 137 S.E. 418; Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400. It prevents the tying up of real estate during the life of the first taker, facilitates its alienation a generation earlier, and, at the same time, subjects it to the payment of the debts of the ancestor. It also favors dower. Walker v. Butner, 187 N.C. 535, 122 S.E. 301; Crisp v. Biggs, 176 N.C. 1, 96 S.E. 662; Cohoon v. Upton, 174 N.C. 88, 93 S.E. 446.

The effect of the rule, when it applies, is simply this: By force of the limitation to the ancestor's heirs, general or special, the rule in Shelley's Case operates to give to the first taker, who already has an estate of freehold in the land, the inheritance also, by conferring the remainder on him, as the stock from which alone the heirs can inherit, and the source alone from which their inheritable blood can spring. Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 34 A. L. R. 952; Jones v. Whichard, 163 N.C. 241, 79 S.E. 503.

It is said by many writers on the subject that the limitation to the heirs unites and coalesces with the limitation of the freehold in the ancestor, and thus operates to vest in the first taker a fee simple or a fee tail, as the case may be, divided or split by intervening limitations, where there are any. Benton v. Baucom, 192 N.C. 630, 135 S.E. 629. Thus a gift or a grant to one for life, with remainder to his heirs, gives him a fee simple in possession by the merger of his life estate in the inheritance. But a gift or grant to one for life, remainder to another for life, remainder to the heirs of the first taker, gives to the first taker an estate for life in possession, with a fee simple in expectancy; a merger in this case being prevented by the intermediate life estate. Hileman v. Bouslaugh, 13 Pa. 344, 53 Am. Dec. 474. In such case, however, the ancestor or first taker may deal with the property as full owner thereof, subject only to the intervening life estate and its incidents. Smith v. Smith, 173 N.C. 124, 91 S.E. 721; Cotten v. Moseley, 159 N.C. 1, 74 S.E. 454, 40 L. R. A. (N. S.) 768.

A donor or grantor is no more competent to make a tenancy for life a source of inheritable succession that he is competent to create a perpetuity or a new canon of descent; and the rule is too intimately connected with the doctrine of estates to be separated from it without breaking the ligaments of property. Benton v. Baucom, 192 N.C. 630, 135 S.E. 629; Crisp v. Biggs, supra.

Mr. Tiffany, in his valuable treatise on Real Property, vol. 1 (2d Ed.) 529, gives a practical statement of the rule, and discusses its application to various illustrative cases, citing numerous authorities in support of the text, as follows:

"If, after the limitation of a particular estate of freehold in favor of a person, a remainder is limited in favor of his heirs, or the heirs of his body, such person will take an estate in remainder in fee simple or fee tail, according as the limitation in remainder is in favor of his heirs or the heirs of his body, and the particular estate will merge therein, unless another estate be interposed between the particular estate and the remainder.

In the case of a limitation to A. for life, with remainder to his heirs or to the heirs of his body, which is the typical form calling for an application of the rule in Shelley's Case, the effect of the rule, it would seem, as above indicated, is not to operate directly upon the life estate in A., but to give to the remainder the effect of a gift to A., the whole limitation taking effect as if it were to A. for life, with remainder to A. and his heirs, or to A. and the heirs of his body. In the remainder in fee or in tail thus vested in A., the estate limited to him for life will merge, and he will consequently take a fee simple or fee tail in possession, while the heirs or heirs of the body will take nothing.

If, to take another case, the remainder to the heirs or heirs of the body is conditioned on some event, as in the case of a limitation to A. for life, with remainder, if A. shall survive B., to A.'s heirs, or the heirs of his body, A. then has an estate for life, and a remainder in fee or in tail conditioned on his survival of B. In such case, the remainder in favor of A. and his heirs being contingent, the particular estate will not merge therein, but, upon the vesting of the remainder by the death of B. before A., merger will take place, and A. will have, as in the previous case, an estate in fee simple or fee tail in possession.

If there is an intermediate estate interposed between the life estate in...