Williamson v. Cox

• Decision Date: 25 September 1940
• Docket Number: 95.
• Parties: WILLIAMSON et al. v. COX et al.
• Court: North Carolina Supreme Court

10 S.E.2d 662

218 N.C. 177

WILLIAMSON et al. v. COX et al.

No. 95.

Supreme Court of North Carolina

September 25, 1940

Luke Lamb, of Wilson, for plaintiffs, appellants.

A O. Dickens and Connor & Connor, all of Wilson, for defendants, appellees.

DEVIN Justice.

This case involves the construction of the following clause in the will of Patrick Williamson: "I give and bequeath to my son, Henry Singler Williamson, all the balance of my land, to have and to hold to him and his bodily heirs born in wedlock if any, if no such heirs, then to go back to his nearest of blood kin."

Henry Singler Williamson died without issue, leaving surviving his widow and several nieces and nephews, children of deceased brothers and sisters, who are the plaintiffs in this action and one surviving sister, Ellen W. Cox, the defendant.

The plaintiffs contend that under the will Henry Singler Williamson took a fee simple, and that hence the land descended to his heirs general, subject to the dower right of the widow. They base their contention upon several grounds (1) That the first portion of the will devised an estate in fee simple, and that a limitation over was void; (2) that the first taker was presumably the favorite of the testator, and that language of doubtful meaning should be construed in favor of the early vesting of the estate; (3) that the limitation over is made to depend upon no supervening contingency, the happening of which would defeat the prior estate; (4) that if the phrase "bodily heirs" be construed children, then Henry Singler Williamson having no children, the devise conveyed on estate tail which the statute (C.S. § 1734) would convert into a fee simple.

On the other hand, the defendants contend that by the use of the words "heirs of the body born in wedlock," taken in connection with the entire language in which the devise was expressed, there was manifest the intention on the part of the testator that these words be understood to mean lawful issue or children; that by this expression in connection with the following words "if any, if no such heirs, then to go back to his nearest of blood kin," there was constituted a contingency upon which the limitation over was to depend; that Henry Singler Williamson took only a determinable fee under the will; and that upon his death without bodily heirs born in wedlock, the land passed to his nearest of blood kin, his surviving sister, Ellen W. Cox.

The cardinal principle in the interpretation of wills is that the intention of the testator as expressed in the language of the instrument shall prevail, and that the application of technical rules will not be permitted to defeat an intention which substantially appears from the entire instrument. Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Smith v. Mears, 10 S.E.2d 659, at this term. However, accepted canons of construction which have become settled rules of law and of property cannot be disregarded. As was said in May v. Lewis, 132 N.C. 115, 43 S.E. 550, 551: "It is our duty, as far as possible, to give the words used by a testator their legal signification, unless it is apparent from the will itself that they were used in some other sense." 4 Kent's Com., 231.

It may be noted at the outset that the rule in Shelley's case has no application here. Daniel v. Bass, 193 N.C. 294, 136 S.E. 733; Wallace v. Wallace, 181 N.C. 158, 106 S.E. 501; May v. Lewis, supra. The language of the devise does not present a case which would require the application of that rule of ancient origin and continuing vitality which Justice Douglas in Stamper v. Stamper, 121 N.C. 251, 28 S.E. 20, 22, wittily dubbed "the Don Quixote of the law." If the testator had used the words "to Henry Singler Williamson and his bodily heirs," and no more, undoubtedly a fee simple would have been conveyed. Did the subsequent words, "if any, if no such heirs, then to go back to his nearest of blood kin," defeat that estate upon his death without bodily heirs born in wedlock, and serve to pass the fee to his nearest of blood kin? At common law a fee simple could not be limited after a fee simple. But after the statute of uses (27 Henry VIII), it was held that the estate created by a deed operating under the statute might be made to commence in futuro without immediate transmutation of possession, and that by such conveyances inheritances might be made to shift from one to another upon a supervening contingency, and thence arose the doctrine of springing and shifting uses or conditional limitations. As stated by Ashe, J., in Smith v. Brisson, 90 N.C. 284: "It was under the doctrine of a shifting use that it has been held since early after the statute of uses, that a fee-simple may be limited after a fee-simple, either by deed or will; if by deed, it is a conditional limitation; if by will, it is an executory devise. 'And in both these cases a fee may be limited after a fee.' 2 Blk. Com., 235." By the Act of 1827, now C.S. § 1737, it was provided that: "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, *** shall be held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or child *** living at the time of his death."

In Massengill v. Abell, 192 N.C. 240, 134 S.E. 641, this court construed a will wherein the testator devised land to "Nathan A. Massengill and his heirs, and if no heirs at his death to return to his nearest relations." It was there held, Adams, J., speaking for the court, that if Nathan A. Massengill should die leaving no issue at his death the limitation over would take effect, the ulterior limitation "if no heirs at his death" becoming effective. The court said: "He [the testator] limited a fee upon a fee by 'cutting down the first in order to make room for the second.' Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. The principle is familiar. A devise to A. and his heirs, to be void if A. have no child living at his death, leaves in the devisor some interest which he may give to a third person, and in the disposition of such interest, under the doctrine of springing and shifting uses, a fee may be limited after a fee (Willis v. Trust Co., 183 N.C. 267, 111 S.E. 163; McDaniel v. McDaniel, 58 N.C. 351), and the ulterior limitation will become effective upon the death of the first taker."

It was also said in this well considered case of Massengill v. Abell, supra: "A limitation to the heirs of a living person, if no contrary intention appear in the deed or will, will be construed to be to the children of such person. C.S. § 1739. But this is not a limitation to the heirs of a living person, but a limitation over, if there be no heirs at the death of the first taker, and the word 'heirs' in this phrase *** means 'issue."' It was accordingly held that the limitation over would become effective if the first taker had no issue living at his death.

In Hudson v. Hudson, 208 N.C. 338, 180 S.E. 597, the testator devised land to his daughter "to be hers and her heirs, if any, and if no heirs to be equally divided with *** other children." It was held this did not convey an indefeasible fee.

In Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15, the devise of land was to "M. 'during her life, then to her bodily heirs, if any; but if she have none, back to her brothers and sisters."' The court held the words "bodily heirs, if any," coupled with an ulterior limitation to her brothers and sisters, showed that the words "bodily heirs" (equivalent to heirs of the body) were not used in their technical sense but meant children or issue. And in Jones v. Whichard, 163 N.C. 241, 79 S.E. 503, 504, where the conveyance was to R and M for life, "and then to their legal bodily heirs, provided they leave any, and if not, to be equally divided among *** nearest of kin," the same result was reached.

In Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 503, 34 A.L.R. 952, the present Chief Justice pointed out that, in determining whether the testator used the words "lawful heirs of my son" in their technical sense, the ordinary principles of construction should be applied in order to ascertain the intent of the testator. It was held in that case that these words were used in the sense of issue or children. The same view was expressed by Hoke, J., in Pugh v. Allen, 179 N.C. 307, 102 S.E. 394, and similar rulings of this court in Francks v. Whitaker, 116 N.C. 518, 21 S.E. 175; Rollins

v. Keel, 115 N.C. 68, 20 S.E. 209, and Sain v. Baker, 128 N.C. 256, 38 S.E. 858, were cited.

In Reid v. Neal, 182 N.C. 192, 108 S.E. 769, the testator devised land to his daughter, "to her during her natural life, and at her death, I give it to her bodily heirs, if any, and if none, to return to my estate". After reviewing a number of decided cases, Adams, J., uses this language: "After a careful consideration of the authorities, we conclude that effect must be given to the ulterior limitation, 'and if none to return to my estate'; that the testator gave to his daughter *** a life estate, with remainder in fee, defeasible upon the failure of her 'bodily heirs"', these words being construed to mean issue.

In Wallace v. Wallace, supra [181 N.C. 158, 106 S.E. 504], the court construed a deed conveying land to C. A. Wallace for life, and after his death "to his bodily heirs in fee simple, if any, and if none to go to his next of kin." It was held the words "bodily heirs" were used in the sense of children or issue, and that the estate conveyed was to C. A. Wallace for life, remainder to his issue, and upon failure of issue over to his next of kin, the term next of kin being synonymous with nearest of kin.

In Smith v. Brisson,...