Whitfield v. Garriss

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J.
• Citation: Whitfield v. Garriss, 45 S.E. 904, 134 N.C. 24 (N.C. 1903)
• Decision Date: 08 December 1903
• Parties: WHITFIELD et al. v. GARRISS et al.

45 S.E. 904

134 N.C. 24

WHITFIELD et al. v. GARRISS et al.

Supreme Court of North Carolina

December 8, 1903

On petition for rehearing. Petition denied.

For former opinion, see 42 S.E. 568.

W. C Munroe and F. A. Woodard, for petitioners.

F. A Daniels and W. T. Dortch, for defendants.

WALKER J.

This is a petition to rehear the above-entitled case, which was decided by this court at August term, 1902, and is reported in 131 N. C., at page 148, 42 S.E. 568. The action was brought to recover real property. The plaintiffs, who are the heirs at law of Franklin Whitfield, claim the land under the fifteenth item of the will of Lewis Whitfield, grandfather of Franklin, who died in 1850. By that item the land which is described in the complaint is devised "to Franklin Whitfield, son of L. S. Whitfield, and in the event of the death of the said Franklin Whitfield leaving no heirs of his own body the land to descend to the three sons of L. S Whitfield, or the survivor of them, and in case the last survivor of the sons of L. S. Whitfield, deceased, should die leaving no heirs of his own body, the said land to be equally divided between all of the grandsons of the testator." One of the defendants alleges that Franklin Whitfield conveyed a part of the land to him in fee, with warranty, and the other defendants allege that he conveyed the residue in fee, with warranty, to John W. Isler, under whom some of them claim by descent and others by actual purchase. There was no dispute as to these facts. It will be seen, therefore, that a determination of the controversy requires a construction of the fifteenth item of Lewis Whitfield's will. The contention of the plaintiffs is that by that item of the will an estate for his life only was given to Franklin Whitfield and by implication the fee was given to his children in remainder, if he left any. The defendants, on the contrary, contend that by the will Franklin Whitfield was given an estate in fee, determinable upon his dying without issue of his body, or children, which is the same thing under our statute; and that, while his deeds did not convey an indefeasible title to the land at the time they were executed, as he afterwards died leaving heirs of his body, or children, the estate conveyed by the deeds, which was theretofore contingent, thereby became absolute and indefeasible, and this court so decided at the last hearing. We are not disposed, after a full and careful reconsideration of the question, and a thorough examination of all the authorities upon which the plaintiffs rely, to reverse that decision, because we regard it as correct, and in strict accordance with former decisions of this court and the general and well-established principles of law. The cases cited by the plaintiffs, when rightly considered, do not, we think, conflict with the conclusion thus reached, with perhaps one or two exceptions, which, if they cannot be explained or distinguished by their special facts or circumstances, are opposed to the great weight of authority. It is not insisted that there is any express provision of the will by virtue of which the plaintiffs can claim the testator intended that, if Franklin Whitfield left children, they should take the land as purchasers under the will, and not by descent from their father, if he should not dispose of the same, but the argument is that the very terms of the will signify an intention on his part to confine the operation of the devise to the life of Franklin Whitfield and to give a remainder in fee to his children, if he should have any, and, if he died without leaving children, to give the property to the persons named alternatively as beneficiaries under the ulterior devise; and that thus a gift by implication, or by construction, as it is sometimes called, is raised in favor of the children by way of remainder or as purchasers under the will.

In order to induce us to adopt their view, the plaintiffs must make out a very strong case. "It is a well-known maxim," says Jarman in his work on Wills, ""that an heir at law can only be disinherited by express devise or necessary implication, and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed." 2 Jarman on Wills (5th Am. Ed. by R. & T.) 112; Post v. Hover, 33 N.Y. 599. It is also said that an estate by devise may pass by implication, without express words to direct its course; but, where an implication is allowed, it must be raised as a necessary, or at least a highly probable, and not merely a possible, implication. The general policy of the law and the leaning of the courts are against the doctrine of implied estates under such devises, and have tended rather to limit than to extend it. White v. Holton, 23 N. J. Law, 330. Lord Mansfield, in referring to this subject, said that: "Necessary implication is that which leaves no room to doubt. It is not an implication upon conjecture. You are not to conjecture what he would have done in an event the testator never thought of. That will not do." In Jones v. Morton, reported in 1 Fearne on Rem. (Appendix) 590, Lord Eldon, discussing the same proposition, said: ""With regard to that expression, 'necessary implication,' I will repeat what I have before stated, that, in construing a will, conjecture must not be taken for implication; but necessary implication means not natural necessity, but so strong a probability of intention that an intention contrary to that which is imputed to the testator cannot be supposed." Williamson v. Adams, 1 V. & B. Ch. Rep. 465; Nickerson v. Bowly, 8 Metc. 431; Rathbone v. Dyckman, 3 Paige, 28.

It is provided by our statute that when real estate shall be devised to any person the same shall be held and construed to be a devise in fee simple, unless such devise shall in plain and express words show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity. Code, § 2180. By force of this statute, which is the act of 1784, Franklin Whitfield took an estate in fee, unless it was "plainly intended" by the testator that he should have a less estate. It surely cannot be contended by the plaintiffs that it appears "in plain and express words" the testator intended that he should not have an estate in fee simple, or that he should have only a life estate. We have found no expression in the will, nor can we discern therefrom any intention of the testator, which precludes the construction the statute places upon its words, or which prevents the full operation of the statute in vesting a fee although inheritable words are not used. The plaintiffs encounter not only the strong leaning of the law against their construction, but also the positive requirement of the statute that the devise shall be held to be in fee unless the testator plainly intended by his will that an estate of less dignity should pass to the beneficiary. An intention contrary to that implied by the statute must be gathered from the will; and the burden, of course, is upon the plaintiff to show that it exists. Instead of there being any evidence of such an intention in the will, we think that the terms of the devise plainly evince the purpose of the testator to have been to vest in Franklin Whitfield an estate in fee; or, at all events, the limitation that, if he died without heirs of his body, the property should go over to the ulterior devisees, does not rebut the intendment of the statute. The devisor must be presumed to have known the law which was in force at the time his will was written, and, acting upon this presumption, there must be inserted in the will the provision of the statute, so that it will read, "I devise to my grandson, Franklin Whitfield, and his heirs, that part of my lands," etc. He thereby acquired a fee-simple estate, unless the words, "in the event of his death leaving no heirs of his body," are sufficient to restrict the estate devised to one of less duration than a fee--or, in other words, to a life estate--and thereby prevent the insertion of inheritable words in the devise. Why should we assume that the testator was ignorant of the law, and therefore intended, by his failure to use words of inheritance, to devise only a life estate? Is not the provision for the estate to go over in the event of his death without heirs of his body fully explained, and the intention executed, by allowing his surviving children to take as heirs--that is, by descent from him; and is not this construction perfectly consistent and in harmony with the requirement of the statute that inheritable words shall not be necessary to create an estate in fee simple by will? But suppose that, as he has used the words, "in the event of his death leaving no heirs of his body," he intended to devise the land to his grandson, Franklin Whitfield, and the heirs of his body, and that such a devise is to be clearly implied from the very language of this item of the will, then by virtue of the statute (Acts 1784, c. 204; Code, § 1325) the estate so created must be deemed and held to be a fee simple. Ward v. Jones, 40 N.C. 400-405; Jones v. Spaight, 4 N. C. 158; Bird v. Gilliam, 121 N.C. 326, 28 S.E. 489; Buchanan v. Buchanan, 99 N.C. 308, 5 S.E. 430. So that, whatever view is taken of it--whether the will is construed with reference to what is said in section 1325 of the Code (Act 1784, c. 204, § 5), or section 2180 (Acts 1784, c. 204, § 12)--we will reach the same result. The idea that Franklin Whitfield took a fee, and that his heirs, but for his conveyance of the land, would have taken not as purchasers, but by descent from him, or as his heirs, explains several of the cases cited by the plaintiffs' counsel in his brief; for where, in those...