Witty v. Witty

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, J.
• Citation: Witty v. Witty, 184 N.C. 375, 114 S.E. 482 (N.C. 1922)
• Decision Date: 15 November 1922
• Docket Number: 393.
• Parties: WITTY ET AL. v. WITTY ET AL.

114 S.E. 482

184 N.C. 375

WITTY ET AL. v. WITTY ET AL.

No. 393.

Supreme Court of North Carolina

November 15, 1922

Appeal from Superior Court, Guilford County; Harding, Judge.

Action by C. M. Witty and others against Ed. Witty and others. From a judgment of nonsuit, plaintiffs and defendant Elizabeth Terry appeal. Affirmed.

In the absence of a contrary expressed intention, or to be derived from the context, an estate limited by way of remainder to a class described as the testator's lawful heirs, or by similar words descriptive of those who would take testator's estate under the canons of descent, had he died intestate, vests immediately on the death of the testator, at which time the members of the class are to be ascertained and determined.

Civil action in ejectment and for a sale for division of certain lands, situate in Guilford county, N.C. The evidence offered by plaintiffs tended to show the following facts:

That Levi R. Witty died in January, 1872, seized and possessed in fee of the lands described in the complaint, and which are in controversy here; that he disposed of said lands by his last will and testament, the effect of the terms of which are in dispute; that his wife, Louisa Witty, who was given a life estate in the lands in controversy, survived her husband and died on December 16, 1920; that said Levi R. Witty was survived by five children, all of whom died before the death of his said wife and life tenant; that only one of these five children ever married, and the defendant Mrs. E. M. Witty is the wife of that one child, to wit, E. M. Witty; that no issue was ever born to any of said children, but that the defendant Mark Witty, Jr., is an adopted child of the testator's married child, E. M. Witty; that the defendant Elizabeth Terry is the only surviving brother or sister of the said testator, while the other parties to this action except Mrs. E. M. Witty and Mark Witty, Jr., are all the nephews and nieces of said Levi R. Witty.

At the close of plaintiffs' evidence, and on motion of the defendants, there was a judgment as of nonsuit, from which the plaintiffs and the defendant Elizabeth Terry appealed.

Brooks Hines & Smith, of Greensboro, for appellants Witty and others.

Thomas C. Hoyle, of Greensboro, for appellant Terry.

Wm. P Bynum, King, Sapp & King, and Sidney S. Alderman, all of Greensboro, for appellees.

STACY J.

On the hearing, the title offered was properly made to depend upon the construction of the following clause in the will of Levi R. Witty:

"I give and devise to my beloved wife, Louisa, the plot or parcel of land (description not in dispute) to have and to hold her natural life or widowhood in satisfaction for and in lieu of her dower and thirds in all my real estate; at the death of my wife, or if she marries again, my will is that the aforesaid lands be sold at public sale (after due notice has been given) to the highest bidder and the amount it brings equally divided among my lawful heirs. * * * My will is that the remaining portion of my lands be sold according to law to the highest bidder and the amount equally divided among all my children, excepting my daughter, Emma. She is to have one hundred dollars more than any of the other children."

The plaintiffs and the defendant Elizabeth Terry contend that under a proper construction of the foregoing clause in the will of Levi R. Witty, the property described in the complaint is to be sold after the death of his widow, Louisa Witty, and the proceeds divided among them and the other nephews and nieces of said testator living at the death of said Louisa Witty, and that the class to take is to be determined as of the date of her death. The defendants Mrs. E. M. Witty, and Mark Witty, Jr., contend, as held by the court below, that by the will of said Levi R. Witty a vested remainder in fee was given to the children surviving at the testator's death, and that the remainder to the five children so surviving accumulated in the respective survivors as each of them died without issue, until the entire estate vested in E. M. Witty, the last one to die, and was devised by him to his widow, the defendant, Mrs. E. M. Witty, for life, and the remainder to his adopted son, Mark Witty, Jr., and that these defendants are the owners and entitled to the possession of the lands in controversy.

The case turns upon the single question as to whether the interests in remainder are vested or contingent, and as to whether the testator's "lawful heirs" are to be determined as of the date of his death or at the death of his widow, the life tenant. It is admitted that, if vested remainders are created, the interests in remainder vested, upon the death of the testator, in the five children of his then living; that the vested interest of each of these five, as he or she died before the life tenant, accumulated in the survivors until finally testator's son, E. M. Witty, was the only living child and heir, holding all the remainder as a vested interest; and that when he died before the death of the life tenant his vested right in the entire remainder passed by his will to the appellees, Mrs. E. M. Witty, his widow, as life tenant, and mark Witty, Jr., as remainderman in fee. In other words, if the remainders created are vested, the class of remaindermen is to be ascertained according to the general rule; i. e., as of the date of the death of the testator, and, such being the case, the appellees, Mrs. E. M. Witty and Mark Witty, Jr., are the devisees or legatees of all of the fee in remainder. This was the holding of the trial judge. It is admitted, on the other hand, that if contingent remainders are created, the contingency being that the class of remaindermen is not to be ascertained until the death of the life tenant, then the appellants are entitled, for themselves and other collaterals who did not appear, to an order for the sale of the land in question, now in the possession of the appellees, and for distribution of the proceeds.

It is undoubtedly the general rule of testamentary construction that, 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, an estate limited by way of remainder to a class described as the testator's "heirs," "lawful heirs," or by similar words descriptive of those persons who would take his estate under the canons of descent, had he died intestate, vests immediately upon the death of the testator, and at which time the members of said class are to be ascertained and determined. Jenkins v. Lambeth, 172 N.C. 468, 90 S.E. 513, and cases there cited; 23 R. C. L. 549; note, Ann. Cas. 1917A. 859; Welch v. Blanchard, 208 Mass. 523, 94 N.E. 811, 33 L. R. A. (N. S.) 1, and note. This is not only the general rule of construction, but it is in keeping with the natural and primary meaning of the words themselves. Whall v. Converse, 146 Mass. 345, 15 N.E. 660; Tuttle v. Woolworth, 62 N. J. Eq. 532, 50 A. 445. "An heir," says Blackstone, "is he upon whom the law casts the estate immediately on the death of the ancestor." 2 Blackstone, c. 14.

In Bullock v. Downes, 9 H. L. Cas. 1, Lord Campbell stated the rule as follows:

"Generally speaking, where there is a bequest to one for life, and after his decease to the testator's next of kin, the next of kin who are to take are the persons who answer that description at the death of the testator, and not those who answer that description at the death of the first taker. Gifts to a class, following a bequest of the same property for life, vest immediately upon the death of the testator. Nor does it make any difference that the person to whom such previous life interest was given is also a member of the class to take on his death."

Of course, in dealing with real property, "heirs at law" takes the place of "next of kin" in any statement of the rule. This general rule has been recognized and approved by us in a number of cases, notably Jones v. Oliver, 38 N.C. 369; Brinson v. Wharton, 43 N.C. 80; Rives v. Frizzle, 43 N.C. 237; Devane v. Larkins, 56 N.C. 377; Newkirk v. Hawes, 58 N.C. 268; Pollard v. Pollard, 83 N.C. 97; Harris v. Russell, 124 N.C. 554, 32 S.E. 958; Wool v. Fleetwood, 136 N.C. 471, 48 S.E. 785, 67 L. R. A. 444; and Baugham v. Trust Co., 181 N.C. 406, 107 S.E. 431. In the last-cited case, Allen, J., speaking for the court, quoted with approval the following from 40 Cyc. 1481:

"As a general rule the death of the testator is the time at which the members of a class are to be ascertained in case of a gift to the testator's heirs, next of kin, or other relatives, unless the context of the will indicates a clear intention that the property shall go to the heirs, next of kin, or other relatives at a different time, such as at the time of distribution, or at the death of the first taker, or at the date of the execution of the will. * * * Where the gift is to the heirs or next of kin of another than the testator it ordinarily refers to the death of such other, unless the context of the will manifests that the class shall be determined at a different time, such as at the time of distribution."

In Jenkins v. Lambeth, 172 N.C. 468, 90 S.E. 514, the same rule is stated by Hoke, J., as follows:

"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

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