Jernigan v. Lee , 176 S.E.2d 899 ( 1970 )

176 S.E.2d 899 (1970)

Sueanne M. JERNIGAN (unmarried)
v.
Maxine Core LEE and husband Leon Lee, William Core (unmarried), Laura P. Elmore and husband, P. W. Elmore, et al.

No. 7011SC505.

Court of Appeals of North Carolina.

October 21, 1970. Certiorari Allowed December 16, 1970.

Britt & Ashley, by Wallace Ashley, Jr., Smithfield, for plaintiff appellant.

Joseph H. Levinson, Benson, for defendants appellees.

BRITT, Judge.

We hold that the court erred in granting defendants' motion for summary judgment.

It is conceded by defendants that Item 2 and Item 4 of Leacy's Will must be read together contextually. Considering the two items together, the effect is to give O. D. a determinable fee rather than a fee simple. Perrett v. Bird, 152 N.C. 220, 67 S.E. 507 (1910). The event which would cause, and in fact did cause, O. D.'s estate to determine was his death without "issue or heirs by him begotten." Reading this phrase we conclude that Leacy meant "children" rather than heirs generally. Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15 (1912); Lockman v. Hobbs, 98 N.C. 541, 4 S.E. 627 (1887). The same conclusion is reached with regard to the estate of Meta. Reading Item 4 as a whole it appears that the phrase "heirs of her body living at her death" meant "children". Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501 (1922). Upon the death of Meta without children her estate was determined. The ultimate devise was to "Berry Jernigan and his heirs, if any, otherwise to his next of kin, who may be living at his death." Reading the word "heirs" and the words "next of kin" in the same sentence it is apparent that "heirs" should be read to mean "children" and "next of kin" should be read as heirs generally. Hudson v. Hudson, 208 N.C. 338, 180 S.E. 597 (1935); Puckett v. Morgan, supra; G.S. § 41-6; Smith v. Brisson, 90 N.C. 284 (1884).

When the phrase "Berry Jernigan and his heirs" is read "Berry Jernigan and his children" it is clear that a potential tenancy in common was created by the will of Leacy. It is not necessary here to determine when the tenancy in common arose, because the plaintiff, having been born in 1927, was in existence during all of the time that is relevant to the calling of the roll. Upon the termination of Meta's estate, if Berry had been alive and had had a child and had made no conveyance of his interest, Berry and that child would have been tenants in common in the land devised. Since no basis for a division of the land was stated in the will, as between tenants in common it is presumed that the parties will share equally. Loring v. Palmer, 118 U.S. 321, 6 S. Ct. 1073, 30 L. Ed. 211 (1885). Upon the facts set forth in the pleadings, we think plaintiff now owns one-half of the land in her own right under the will. Whitesides v. Cooper, 115 N.C. 570, 20 S.E. 295 (1893). The one-half that her father contingently owned at the time of his conveyance in 1939 would have passed to plaintiff by descent (see G.S. § 41-2) if the conveyance had not been made; however, as to her father's half plaintiff is estopped to deny the validity of his deed. Hardy v. Mayo, 224 N.C. 558, 31 S.E.2d 748 (1944); 3 Strong, N.C. Index 2d, Estoppel, sec. 1, p. 578. Upon the facts pleaded, we think plaintiff is entitled to a one-half undivided interest in the land in question.

It might be noted that neither the Rule in Shelley's Case nor the Rule in Wild's Case applies to alter the effect of the phrase "Berry Jernigan and his heirs". The former does not apply because it is clear that "heirs" is not used in its technical sense, and this usage is necessary for the application of the rule. Welch v. Gibson, 193 N.C. 684, 138 S.E. 25 (1927); Nichols v. Gladden, 117 N.C. 497, 23 S.E. 459 (1895); 4A Thompson on Real Property, Future Interests, sec. 2010, p. 576. The Rule in Wild's Case does not apply because "Berry Jernigan and his heirs" did not take an estate directly and immediately from Leacy. Cole v. Thornton, 180 N.C. 90, 104 S.E. 74 (1920), 4A Thompson on Real Property, Future Interests, sec. 2008, p. 564.

For the reasons stated the judgment of the Superior Court is

Reversed.

CAMPBELL and VAUGHN, JJ., concur.