Chappell v. Chappell , 260 N.C. 737 ( 1963 )

133 S.E.2d 666 (1963) 260 N.C. 737

In the Matter of Beecher P. CHAPPELL, Guardian of Bessie Chappell, Incompetent,
v.
Beecher P. CHAPPELL, Individually, et al.

No. 34.

Supreme Court of North Carolina.

December 19, 1963.

Aydlett & White, Elizabeth City, for petitioner appellant.

LeRoy, Wells & Shaw, Elizabeth City, for respondent appellants.

W. J. P. Earnhardt, Jr., Edenton, guardian ad litem for Burrus Chappell, Jr.

Philip P. Godwin, Gatesville, for respondent appellees.

DENNY, Chief Justice.

The question posed for decision is whether or not the words "to the nearest heirs" as they appear in Item Three of the will of John S. Chappell bring this devise within the rule in Shelley's case.

In the case of Allen v. Hewitt, 212 N.C. 367, 193 S.E. 275, this Court said: "The terms ``loan' and ``lend' when used in a will are given the interpretation of the words ``give' and ``devise' unless it is manifest that the testator intended otherwise. Sessoms v. Sessoms, 144 N.C. 121, 56 S.E. 687, citing Cox v. Marks, 27 N.C. 361; King v. Utley, 85 N.C. 59; Robeson v. Moore, 168 N.C. 388, 84 S.E. 351, L.R.A.1915D, 388 [496]; Waller v. Brown, 197 N.C. 508, 149 S.E. 687. * * *

"It is established by repeated decisions of this court that the rule in Shelley's Case is still recognized in this jurisdiction, and where the same obtains it does so as a rule of property without regard to the intent of the grantor or devisor. (Citations omitted.)" See Hammer v. Brantley, 244 N.C. 71, 92 S.E.2d 424, and Strong's North Carolina Index, Volume 4, Section 32, page 513.

Likewise, in Crisp v. Biggs, 176 N.C. 1, 96 S.E. 662, Jesse Mizelle devised the tract of land in question to his son, Hardy Mizelle, "to have and to hold in fee simple all the days of his life, then it shall descend to his nearest heirs." The question to be determined was whether the devise to Hardy Mizelle was in fee simple under the rule in Shelley's case. Clark, C. J., speaking for the Court, said: "The rule in Shelley's Case was first stated 1 Coke, 104, in 1581, and is as follows: ``When an ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited either mediately, or immediately, to his heirs in fee or in tail, the word "heirs" is a word of limitation of the estate, and not a word of purchase.' * * *

"The words ``nearest heirs,' mean simply ``heirs,' and do not take this case out of the rule." Cox v. Heath, 198 N.C. 503, 152 S. E. 388.

Also, in the case of Ratley v. Oliver, 229 N.C. 120, 47 S.E.2d 703, the devise was to W. A. Ratley "for his natural life, and at his death to his nearest heirs." The Court said: "And the principle seems to have been established by the adjudications of this Court that the words ``nearest heirs,' standing alone, should be understood in their technical sense as denoting an indefinite succession of lineal descendants who are to take by inheritance * * *, and that the rule in Shelley's Case applies as a rule of law and of property, vesting fee simple title in the first taker."

In Rose v. Rose, 219 N.C. 20, 12 S.E.2d 688, the devise was as follows: "I give and bequeath to my son, W. W. Rose, the Pierce place where he now lives * * * his lifetime, then to his wife, Sarah, her lifetime or widowhood but in case said W. W. Rose have any heirs said land go to said heirs." Stacy, C. J., speaking for the Court, said: "Reduced to its simplest terms, the devise in question is one to W. W. Rose for life, remainder to his wife Sarah for life, remainder to his heirs. Rowland v. [Home] Building & Loan Ass'n, 211 N.C. 456, 190 S.E. 719. This under the Rule in Shelley's Case gives to W. W. Rose an estate for life in possession, with a fee simple in expectancy. Hileman v. Bouslaugh, 13 Pa. 344. He may deal with the property as full owner and convey it, subject only to the intervening life estate and its incidents. Welch v. Gibson, supra [193 N.C. 684, 138 S.E. 25]; 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. As the intervening life estate is at an end, he may convey it absolutely and in fee simple."

In Smith v. Smith, 173 N.C. 124, 91 S.E. 721, the devise was to testator's son, "to have during his life, at his death to his bodily heirs and to his wife her lifetime or widowhood." The Court held in this case that the son took a fee simple title to the devised land subject only to the life estate of his wife, or until she remarried, and that the precedent life estate in her did not affect the operation of the rule in Shelley's case insofar as the heirs were concerned.

In light of our decisions, we hold that the heirs of John S. Chappell, Jr., are the owners in fee simple of the tract of land devised in Item Three of the will of John S. Chappell, subject to the life estate of Bessie Chappell.

The judgment of the court below is, in all respects,

Affirmed.