Cohoon v. . Upton , 174 N.C. 88 ( 1917 )

Hoke, J.

Tbe rule in Shelley's case is fully recognized in this State as a rule of property, and in many well-considered decisions, recent and of older date, the statement of the rule appearing in the cases and standard text-writers has been approved and applied to facts directly presenting the question to the Court. Smith v. Smith, 173 N. C., 124 (91 S. E., 721); Revis v. Murphy, 172 N. C., 579; Robertson v. Moore, 168 N. C., 389; Nichols v. Gladden, 117 N. C., 497; Starnes v. Hill, 112 N. C., 1; Leathers v. Gray, 101 N. C., 162.

In some of tbe later eases, tbe rule is given from 1 Coke, 104, as follows: “Tbat when an ancestor, by any gift or conveyance, taketb an estate of freehold, and in tbe same gift or conveyance an estate is limited, either mediately or immediately, to bis beirs in fee or in tail, tbe word heirs is a word of limitation of tbe estate, and not a word of purchase.”

And from Preston on Estates, approved by Chancellor Kent as a full, accurate statement of tbe rule: “WPen a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in tbe same instrument there is limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality to his heirs or the heirs of his body as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.”

It was established rather arbitrarily as a rule of property under the feudal system for the reason, chiefly, that to construe the word “heirs” in such case as a word of purchase would often have the effect to deprive the feudal lord of certain fees and perquisites accruing to him in case of lands descended, and, as said in the recent case of Ford v. McBrayer, 171 N. C., 421, operating not infrequently to defeat the purpose of the grantor or testator as expressed in the instrument, the rule has been abolished by statute in many States of the Union; and in those where it is still allowed to prevail, the tendency is to restrict its application, confining it to those cases where the word “heirs” is used in its technical sense to denote the whole line of heirs to take in succession according to our canons of descent. Accordingly, in many cases in this jurisdiction, the application of the rule has been denied where, from the context or from perusal of the entire instrument, it appeared that the word was used in a more restricted sense, or that it was merely a descriptio personarum, designating certain individuals of a class as owners. Ford v. McBrayer, 171 N. C., 421; Jones v. Wichard, 163 N. C., 241; Puckett v. Morgan, 158 N. C., 344; May v. Lewis, 132 N. C., 115; Ward v. J ones, 40 N. C., 400.

In Jones v. Wichard and Puckett v. Morgan, supra, the word “heirs” or “heirs of the body” were employed to designate the ultimate takers, but by reason of certain qualifying words in the context it was construed to mean bodily issue in the sense of children and grandchildren, the general position, as a rule of interpretation, being stated in Jones v. Wichard as follows: “For the application of the rule in Shelley’s case to a conveyance to one for life and the heirs of his body, it must appear that the words ‘heirs of the body’ were used in their technical sense, carrying the estate to such heirs as an entire class to take in succession, with the effect to convey ‘the same estate to the persons, whether they take by descent or purchase,’ and when it appears from the perusal of the entire instrument that the words were not intended in their ordinary acceptation as words of inheritance, but simply as descriptio person-arum, designating certain individuals of the class, or that the estate is thereby conveyed to ‘any other person in any other manner or quality than the canons of descent provide,’ the rule does not apply and the interest of the first taker is an estate for life.”

Giving full recognition, however, to the restrictive tendency of these decisions, we find nothing in the provisions of the present will to prevent the operation of the principal rule. In numbers of cases we have held that'the “word 'lend’ in a will will be taken to pass the property to which it applies in the same manner as give or devise, unless it is manifest that the testator otherwise intended.” Smith v. Smith, 173 N. C., 124; Robeson v. Moore, 168 N. C., 388; Sessoms v. Sessoms, 144 N. C., 121-124.

Under our decisions and by express provision of the statute, the words “heirs of their bodies” are equivalent to the words “heirs general.” Revis v. Murphy, supra; Revisal, sec. 1548. And there is nothing in the context or general terms of the will that in any way restricts, or tends to restrict, the meaning of the word “heirs” from their usual significance as words of general inheritance.

We are of opinion, therefore, that the rule in Shelley’s case must be held to apply, and the demurrer of defendants should be overruled.

Eeversed.