Summey ex rel. Summey v. McDowell ( 1968 )

Campbell, J.

The appellants assert that Vonzelle is the owner in fee of the land in question, together with the timber thereon, by virtue of the application of the rule in Shelley’s case.

“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 words heirs is a word of limitation of the estate, and not a word of purchase.’ ” Crisp v. Biggs, 176 N.C. 1-2, 96 S.E. 662.

The application of the rule in Shelley’s case always presents a puzzling question, and much law has been written pertaining thereto. As Chief Justice Stacy stated in Welch v. Gibson, 193 N.C. 684, 138 S.E. 25:

“Or forsooth did the student answer with a correct guess, when, on being asked the meaning of the rule, he said: 'The rule in Shelley’s case is very simple if you understand it. It means that the same law which was applied in that case applies equally to every other case just like it.’? And so it does. But when is a case 'just like it’, or so nearly so as to come within the operation of the rule?”

As stated by Sharp, J., in Wright v. Vaden, 266 N.C. 299, 146 S.E. 2d 31:

“In considering the applicability of the rule in Shelley’s Case, it is important to draw and constantly keep in mind the difference between words of purchase and words of limitation. When used with reference to the Rule, words of purchase give the remainder to designated persons who thus take in their own right under the will or conveyance, and not by descent as heirs of the first taker. A purchaser, therefore, is one who acquires property in any manner other than by descent.”

In the instant case, the will provides that in the event Yonzelle should die without leaving a child or children, then in that event, the lands are to go to “Lewis Wood, Homer Wood, Bernice Wood Skeen in fee simple, share and share alike.” These pei’sons are the brothers and sister of Yonzelle and, therefore, this case falls in the line of cases similar to Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15, where the provision was:

“I leave Martha Morgan, the wife of James Morgan, 48^4 acres of land, known as the Rachel tract, on the east side, during her life, then to her bodily heirs, if any; but if she have none, back to her brothers and sisters.”

In that case, it was held that the rule in Shelley’s case did not apply. In commenting on that case in Hampton v. Griggs, 184 N.C. 13, at page 18, (113 S.E. 503) Mr. Justice Stacy (later Chief Justice) stated:

■“Here, it will be observed, the ulterior devise, upon the happening of the given contingency, provided that the estate should be taken out of the first line of descent and then put back into the same line, in a restricted manner, by giving it to some, but not to all, of those who presumptively would have shared in the estate as being potentially among the heirs general of the first taker. Looking at the instrument from its four comers, and using this provision, among others, as one of the guides for ascertaining the paramount intent or the dominant purpose of the testator, it was held that the words ‘then to her bodily heirs, if any/ were not used in their technical sense as importing a class of persons to take indefinitely in succession, generation after generation, but as meaning issue or children living at her death.”

For a similar application and answer to the question, see Taylor v. Honeycutt, 240 N.C. 105, 81 S.E. 2d 203.

Reviewing the numerous excellent expositions of when the rule applies and when it does not apply would be an act of supererogation. Suffice it to say in the instant case, the words “children of her body” are words of purchase and not of limitation.

Affirmed.

Mallaed, C.J. and Morris, J., concur.