Doe Ex Dem. Ross v. Toms , 15 N.C. 376 ( 1833 )

Joshua Skinner made his last will and testament, duly executed to pass lands; it was admitted to probate, at January session of the County Court of Perquimans in 1777. In, and by said will, he devised the lands now in controversy, as follows: "Item, I give unto my daughter Mary Skinner, the use and tillage of all my lands lying on Laker's Creek, which I bought of Benjamin Scarborough and Joshua Hobert, during her natural life; and after her death, I give the said lands to be equally divided among the male heirs lawfully begotten of the body of my daughter Mary; and for the want of such heirs, I give the said lands, to be equally divided among the female heirs lawfully begotten of the body of my daughter Mary Skinner; and for want of such heirs, I give the said lands to be equally divided between my two sons Joshua Skinner and John Skinner, to them and their heirs forever."

Mary Skinner married, first, Miles Harvey, and the defendant, a grand daughter of Mary, is the only issue left of the marriage. After the death of Harvey, Mary the widow, intermarried with Martin Ross; and from this marriage there was issue, an only child, by the name of Martin Ross, Jr. Mary, the devisee, died in the year 1824, her son Martin Ross survived her; who died in the year 1825, leaving a son by the name of William Ross, who died without issue in the same year, leaving the lessor of the plaintiff, a half brother of his father, and the defendant a sister of his grandmother, his only relations.

The question for determination was, whether the devise to Mary, in and by the will of her father Joshua Skinner, gave her an estate tail in the lands, which estate tail was converted into a fee simple by the act of 1784, and on her death (377) descended to her son Martin Ross. Or whether her son Martin Ross, took an estate in remainder, under the aforesaid devise in his maternal grandfather's will, which in law, made him a purchaser of the lands.

His Honor instructed the jury that Mary, the devisee under the will of Joshua Skinner, took an estate tail, which by the operation of the act of 1784 was converted into a fee. Under this charge the jury returned a verdict for the defendant, and a rule for a new trial being discharged, the plaintiff appealed. The lessor of the plaintiff being a brother of the half blood of Martin Ross, Jr., and uncle of the half blood of William, would be entitled to a moiety of the land by virtue of the 4th rule in the act regulating descents, passed in 1808 (Rev. ch. 739), provided, Martin Ross, Jr., took the aforementioned lands as a purchaser. But if Mary, the mother of Martin Ross, was the first purchaser, and on her death the lands descended to her son, and from him, descended to his son William Ross; then the lessor of the plaintiff, who has none of the blood of Mary the purchaser, cannot be one of the heirs of William, so long as any relations of the blood of Mary can be found (Rules 4 and 5 in the act of 1808), and therefore cannot recover. In case the lands descended from Mary to her son Martin Ross, and from him to William, who died without issue; then the heir is to be found in the next blood relation of William, on the side of Mary his grandmother, who, it appears, is the present defendant, her sister. Rule 4, act of 1808.

Were it not for the words, "equally to be divided," which are contained in this devise; this case would be implicitly within the rule in Shelly's case, 1 Co., 89. The rule in this case may be thus stated: "That where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument the inheritance is given, either mediately or immediately to his heirs, or heirs of his body, (378) as a class to take in succession as heirs to him, the word "heirs" is a word of limitation and not of purchase; and the ancestor takes the whole estate." (Perrin v. Blake, 4 Burr., 2579. Jones v. Morgan, 1 Bro. C. C., 206. Doe v. Burnsall, 6 Term, 31. Lindsay v. Colyer, 11 East, 564.Roe v. Bedford, 4 M. and S., 362, note H. 5, to Shelly's case, 1 Co., 262. Thomas Fraser's edition.) Do the words, "equally to be divided," which are contained in the devise made by Joshua Skinner, restrain Mary's interest to an estate for life, and enable her children to take in remainder as purchasers? The cases of Doe v. Goff, 11 East., 668, andGretton v. Howard, 1 Eng. C. L., 320, are decisions, which if they had not been shaken and overruled in the House of Lords, in the case of Wright v. Jesson, 2 Bligh., 2; 8 Petersdorff, Ab. 181, would have strongly supported such a position.

In Doe v. Goff, 11 East, 668, the testator devised one estate to his wife for life, and after her decease, to his daughter Mary and the heirs of her body begotten, or to be begotten, as tenantsin common and not as joint tenants; but if such issue should die before he, she, or they attained twenty-one, then to his son Joseph in fee; and he devised another estate to his wife for life, remainder to his son Joseph and the heirs of his body begotten, or to be begotten; but if he died without issue, or such issue all died before he or they attained twenty-one, then to his daughter Mary, and the heirs of her body begotten, or to be begotten, such issue if more than one, to take as tenants incommon. The testator died, leaving his widow and his daughter Mary, him surviving. Both these parties in succession entered and enjoyed the premises devised, and died; Mary leaving daughters (who were the plaintiffs in this action of ejectment), and a son who was the defendant; and the question raised was, what estate Mary took in the first devise. It was argued, for the defendant, that it was necessary Mary should take an estate tail, as well upon the legal effects of the subsequent limitations to the heirs of her body, as to effectuate (379) what it was mentioned, was the general intent of the testator, that no part of the estate devised to Mary and the heirs of her body should go over to her brother, so long as any of her issue were in being, to which the particular intent that her children should take as tenants in common must give way. Sed per Cur. "Heirs of the body having to take as tenants in common, clearly demonstrate that children were meant, by that description, as heirs of the body would take by succession. This is rendered still more plain by the following words, ``that if such issue should depart this life before twenty-one.' Whom does the testator mean by such issue, but the persons to whom he had before referred, by the description of the heirs of the daughter's body? and when he is contemplating the possibility that he, she, or they, may depart this life before twenty-one, to whom can he be referring but the immediate children of his daughter? The obvious intention, therefore, of this part of the will clearly is, to give Mary an estate for life, and her children a distinct and independent interest as tenants in common; and it is too plain to be defeated by a mere conjecture, that the devisor might have a paramount intention inconsistent therewith." Judgment was given for the plaintiff.

The case of Gretton v. Howard, 1 E. C. L., 320, was this: A devised all his real and personal estate of what nature and kind soever to his wife; and after her decease, to the heirs of her body, share and share alike, if more than one; and in default of issue, to be lawfully begotten by him, to be at her disposal. A died, leaving six children. Doev. Goff, 11 East., 668, was cited in argument, and the doctrine of that case, that the testator having given the estate to the heirs of the body, share and share alike, could not have intended an estate tail, under which the eldest son would take the whole, was much relied upon. The Court certified that the wife took a estate for life only, and that each of the six children took a fee simple in remainder expectant on the determination of the mother's life estate, in one-sixth part, as tenants in common.

The case of Wright v. Jesson, 2 Bligh., 2, in the House of Lords, overruling Doe v. Wright, in the King's (380) Bench, 5 M. S., 95, was as follows: A testator devised to W. W. certain premises for the term of his natural life, he keeping the buildings in tenable repair; and from and after his decease, he devised the same to the heirs of the body of the said W. W. lawfully issuing, in such shares and proportions as he, the said W. W. by deed or will should appoint; and for want of such appointment, then to the heirs of the body of the said W. W. lawfully issuing, share and share alike, as tenants in common; and if but one child, the whole to such only child, and for want of such issue, then over. It was held by the court of King's Bench that W. W. took an estate for life only, with remainder to his children for life, respectively, as tenants in common. Against this judgment, a writ of error was brought in the House of Lords. The principal error assigned was, that the Court below had decided that W. W. took only a life estate under the will, with remainder to his children for life; and that a recovery suffered by him, his wife, and their son, was a forfeiture of their estate; whereas the plaintiffs in error contended, that the testator intended to embrace all the issue of W. W. which intention could only be effected by giving W. W. an estate tail. After a very long and able argument at the bar, the House of Lords reversed the decision of the Court of King's Bench. Doe v.Goff, was expressly overruled; and Gretton v. Howard, was not cited, in the House of Lords. Mr. Petersdorff says, it is probable that Gretton v.Howard, would not be, at the present, considered as subsisting authority; if it had been cited in the House of Lords, it is probable it would have shared the fate of Doe v. Goff. It is now, established law, that a devise of lands to A for life, remainder to the heirs of the body of A, share and share alike, as tenants in common, and for want of such issue, then over; does not prevent A taking an estate tail. So, in the case before the Court, a devise of lands to Mary Skinner for her natural life, and after her death, to be equally divided among the male or female heirs lawfully begotten of (381) her body, and for want of such heirs, then over, did not prevent Mary taking an estate tail. (Doe v. Goldsmith, 2 Eng. C. L., 75. Doe v. Featherstone, 20 Eng. C. L., 512.) Two intents are manifest in the will of Joshua Skinner; one, that his daughter Mary should have only an estate for life, the other, that the remainder over should not take effect, so long as any of her issue remained; the latter must be presumed to be the main intent and paramount purpose of the testator; his object was to provide for the family of Mary. This main intent, cannot be effected by giving Mary a life estate, and making her children take by purchase; because there being no words of inheritance added to the estate of the latter, they would take at that time, viz., 1777, only a life estate; and after the death of either, his or her share would go to John or Joshua Skinner. He intended, that on failure of the issue of Mary, and only on that event, his estate should go to John and Joshua Skinner in fee simple. In Doe v. Smith, 7 Term, 527, the Court said, that when it appears in a will that the testator had a general intention and a secondary intention, and they clash, the latter must give way to the former. In Wright v. Jesson, Lord Eldon, in moving the judgment in the House of Lords, said, it is definitely settled as a rule of law, that where there is a particular, and a general or paramount intent, the latter shall prevail, and courts are bound to give effect to the paramount intent.

We are of opinion, that Mary took an estate tail, which was by the act of 1784, converted into a fee; that the lands in controversy descended from Mary, the purchaser, to her son, Martin Ross, and from him to his son William. The defendant, being of the blood of the first purchaser, is entitled to hold all the lands, as heir at law to William Ross; in preference to the lessor of the plaintiff, who is no ways related to Mary the first purchaser. The judgment of the Superior Court is affirmed.

PER CURIAM. Judgment affirmed.

Cited: Allen v. Pass, 20 N.C. 213; Ward v. Jones, 40 N.C. 402;Leeper v. Neagle, 94 N.C. 343; Jenkins v. Jenkins, 96 N.C. 259;Buchanan v. Buchanan, 99 N.C. 311.

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