White v. Alexander

• Decision Date: 14 May 1976
• Docket Number: No. 74,74
• Citation: 224 S.E.2d 617,290 N.C. 75
• Court: North Carolina Supreme Court
• Parties: Samuel WHITE et al., v. Billy Roy ALEXANDER and Iva White.

Page 617

224 S.E.2d 617

290 N.C. 75

Samuel WHITE et al., v. Billy Roy ALEXANDER and Iva White.

No. 74.

Supreme Court of North Carolina.

May 14, 1976.

Adams, Hendon & Carson, P.A., by James Gary Rowe, Asheville, for plaintiffs-appellants.

Paul Young, Swannanoa, and Morris, Golding, Blue & Phillips by James F. Blue III, Asheville, for defendant-appellee Billy Roy Alexander.

EXUM, Justice.

The Court of Appeals erred insofar as it decided that the testatrix's son, Sam, was to share in the estate devised ultimately 'to my heirs,' a class which it properly held under this will should be fixed and identified at testatrix's death.

In construing this will we are well reminded that:

'The epigram of Sir William Jones over 250 years ago 'no will has a brother' has been often quoted by the courts. (Citations omitted.) Two wills rarely use exactly the same language. Every will is so much a thing of itself, and generally so unlike other wills, that it must be construed by itself as containing its own law, and upon considerations pertaining to its own peculiar terms.' Gatling v. Gatling, 239 N.C. 215, 221, 79 S.E.2d 466, 471 (1954).

Our purpose here is to determine the testatrix's intent 'from a consideration of the will itself and the circumstances confronting (her). To ascertain such intent, 'we must consider the instrument as a whole and give effect to such intent unless it is contrary to some rule of law or at variance with public policy.' Trust Co. v. Taliaferro, 246 N.C. 121, 127, 97 S.E.2d 776, 780 (1957).' Trust Co. v. Bass, 265 N.C. 218, 143 S.E.2d 689 (1965).

We hold that this will, properly construed, created estates in the subject property as follows: first, a life estate in testatrix's son, Sam. Testatrix clearly used the words 'heirs of his (Sam's) body' to mean Sam's children. She later provided, 'The said land so devised to my said son and to his said wife in case my said son shall have no Child or children . . ..' (Emphasis added.) Without question 'heirs of his (Sam's) body' meant, in testatrix's mind, Sam's children, if any. The Rule in Shelley's Case, the doctrine of merger, and General Statute 41--1 do not operate to give Sam a fee simple, defeasible or absolute. McRorie v. Creswell, 273 N.C. 615, 618, 160 S.E.2d 681, 683 (1968). Next Sam's widow, Emma, got a contingent life estate. Finally we hold the language 'and at her (Sam's widow's) death or remarriage, the same shall go to my heirs' created a remainder in the heirs of the testatrix, except Sam, contingent upon Sam's death without having had a child. This contingent remainder, assignable and transmissible, Jernigan v. Lee, 279 N.C. 341, 182 S.E.2d 351 (1971); Seawell v. Cheshire, 241 N.C. 629, 86 S.E.2d 256 (1955), passed in interest at testatrix's death to her two daughters and only heirs other than Sam in equal shares. At the death of each daughter that daughter's respective interest passed to her children. Thus Sam White, Mary White Ramsey, and Everette's widow, Iva, are each entitled to a one-sixth undivided interest; and George Lynch and Lucille Lynch Thompson are each entitled to a one-fourth undivided interest in the property.

The general, long established rule of testamentary construction is that a class of persons described as testator's heirs who are given an estate in remainder are those persons who in fact and in law constitute the heirs of the testator at testator's death. The class is fixed and determined at that time. Witty v. Witty, 184 N.C. 375, 114 S.E. 482 (1922). 'It is undoubtedly the general rule that when a testator, after a prior limitation of his property by will, makes, in present terms, a disposition of the same in remainder to his own heirs or right heirs, these heirs, nothing else appearing, are to be ascertained and determined on as of the time of his death. This is not only the primary meaning of the word heirs, but the position is said to be favored by the courts because in its tendency it hastens the time when the ulterior limitation takes on a transmissible quality.' Jenkins v. Lambeth, 172 N.C. 466, 468, 90 S.E. 513, 514 (1916).

This rule of construction is to be followed 'in the absence of a contrary intention clearly expressed in the will, or to be derived from its context, read in the light of the surrounding circumstances.' Witty v. Witty, supra, 184 N.C. at 378, 114 S.E. at 484. A different result follows where 'the testator, in making an ulterior disposition of property after a particular life estate, uses such expressions as 'to such of my sons as may be living at their mother's death,' or 'surviving at her death,' or 'to the representatives of such as may have died before her death,' showing clearly that not only the enjoyment of the remainder, but also the right to take it was intended to be postponed until after the expiration of the preceding life estate.' Witty v. Witty, supra at 381, 114 S.E. at 486. For applications of a survivorship condition see Kale v. Forrest, 278 N.C. 1, 178 S.E.2d 622 (1971) ('my surviving heirs') and Trust Co. v. Waddell, 234 N.C. 34, 65 S.E.2d 317 (1951) ('bodily heirs . . . then surviving.')

Here, however, as in Witty, we have no such expression in the instrument. The remainder after the life estates is simply to 'go to my heirs.' This means 'a division among those who were the heirs of the (testatrix) at (her) death, and who took in right at that time. . . .' Witty v. Witty, supra, 184 N.C. at 381--82, 114 S.E. at 486.

That the remainder to the testatrix's heirs is contingent upon Sam's death without having had a child does not, as plaintiffs contend, relying on General Statute 41--4, require that testatrix's heirs be determined as those persons who would have fitted this description had testatrix died immediately after Sam. The statute, enacted in 1827, provides:

'Every contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children, or offspring, or descendant, or other relative, Shall be held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or Child, or offspring, or descendant, or other relative (as the case may be) Living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it. . . .' (Emphasis added.)

At common law and before the enactment of this statute gifts over upon the condition of someone's dying without issue or without heirs were void for remoteness. Weeks v. Weeks, 40 N.C. 111 (1847). It was thought that the condition of the gift over meant the failure of issue at some indefinite time, whenever it might happen. Brown v. Brown, 25 N.C. 134 (1842). (This rule was said by Taylor, C.J., in Davidson v. Davidson, 8 N.C. 163 (1820), to be 'highly technical and refined' but to have been derived from the English statute De donis and firmly fixed in the law of property.) In order to save such gifts and comply, insofar as possible, with the obvious intent of the testator, our Court, before the enactment of General Statute 41--4, construed the contingency to mean dying during the life of the testator or some subsequent period provided for in the will such as a life estate, some period prescribed for division, arrival at full age, or some similar period. If death without issue or heirs occurred during either of these periods, the gift over was sustained; otherwise it was void. Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401 (1919). For an early application of this rule of construction see Hilliard v. Kearney, 45 N.C. 221 (1853) construing a will written in 1775.

The purpose of the statute was and is to save gifts over upon the contingency of someone's dying without issue even if the contingency occurs after the death of the testator or after some estate or period subsequent to his death. The words in the statute that the gift over 'shall be . . . a limitation to take effect when such person dies not having such heir, or issue, or child . . . living at the time of his death, or born to him within ten lunar months thereafter' mean simply that the interest will be sustained and will pass in possession when and if the contingency, e.g., dying without issue, occurs, even if this event takes place after the death of the testator or grantor or after some intervening estate or period following his death. Patterson v. McCormick, supra at 452, 99 S.E. at 402; Sain v. Baker, 128 N.C. 256, 38 S.E. 858 (1901). These words do not mean that a determination of those persons who take the interest must necessarily wait until the event occurs. At what point in time those persons are determined remains a question of the testator's intent.

We are advertent to language in some of our cases that bacause of G.S. 41--4: 'To determine the effectiveness of the limitation over the roll must be called as of the death of the first taker,' Turpin v. Jarrett, 226 N.C. 135, 136, 37 S.E.2d 124, 126 (1946), and 'it cannot be determined who will take under the limitation until the death of (the first taker). . . .' Rees v. Williams, 164 N.C. 128, 132, 80 S.E. 247, 249 (1913). In neither Turpin nor numerous cases cited therein to support the quoted statement, including Rees, was the question who among a class of ultimate takers had an interest or when the members of such a class should be determined. In both Turpin and Rees the sense of the expressions quoted was that until the death of the first taker with or without issue it could not be determined which among several possible classes of ultimate takers, rather than who among the same class, would have an interest. To the same effect see Ziegler v. Love, 185 N.C. 40, 115 S.E. 887 (1923). For clear holdings that membership of a class of remaindermen described simply as testator's heirs, or the like, which takes...