Silliman v. . Whitaker

The devise was to trustees "in trust for Sarah Ward and all her children, if she shall have any." It was settled in Wild's case, 6 Rep., 17 (3 Coke Rep., 288), decided in the 41st year of Elizabeth, that a devise to B and his (or her) children, B having no children when the testator died, is an estate tail. If he have children at that time, the children take as joint tenants with the parent. This has been uniformly followed in England. In the late case in the House of Lords, Clifford v.Koe, 5 App., 447, Wild's case was reaffirmed, opinions being deliveredseriatim by Lord Chancellor Selborn, Lord Hatherly, Lord Blackburn and LordWatson, unanimously sustaining Wild's case, and stating that "for these three hundred years it has been the uniform ruling" in England. Theobald on Wills, 334; Hawkins on Wills, 198.

In this country, estates tail having been turned into fee simple, while Wild's case has been as uniformly followed as in England, it has been with the necessary modification that where the devise is to B and his children, if he have no children at the testator's death, B takes a fee simple instead of an estate tail, and further (by virtue of our (93) statutes), if there are children of B at the testator's death, the father and children take as tenants in common instead of joint tenants.Wheatland v. Dodge, 10 Metc., 502; Nightingale v. Burrell, 15 Pick., 104 (on p. 114); 3 Jarman on Wills, 174; Schouler on Wills, secs. 555, 556. This has always been the ruling in North Carolina, as was held in Hunt v.Satterwaite, 85 N.C. 73, citing with approval Wild's case and precedents in our reports, and SMITH, C. J., adds that the interposition of a trustee is obviously to secure the property for the use of the mother and her children, and can not change the construction of the devise. This case in turn was approved by MERRIMON, J., in Hampton v. Wheeler, 99 N.C. 222, in which he cites the additional cases of Moore v. Leach, 50 N.C. 88;Chestnut v. Meares, 56 N.C. 416; Gay v. Baker, 58 N.C. 344, and states that "the rule is clearly settled and we need not advert further to it."

It is true the words here are to "Sarah and her children, if she shallhave any." We do not see that these added words change the construction in any wise. At most, they merely indicate that at the time of writing the will the testator knew his daughter had no children, and doubtless the same was true in all the numerous cases above cited in which the devise was to "B and his children," in which uniformly when B had no children at the testator's death he was held in England to take an estate tail, and in this country a fee simple. In the present case there is nothing on the face of the will to show a contrary intent to take it out of the long-settled rule. From the allegations of the complaint it appears that Sarah was eleven or twelve years of age at the testator's death, but non constat that he might not have expected that at his death she would have been married and the mother of a child.

In a very similar case — Gillespie v. Shumann, 62 Ga. 252 (1879), where the devise was to a woman and "her children, if any living," it was held to mean living at the death of the testator — (94) almost our very case — and as none were then living, the woman took a fee-simple estate, and the birth of a child subsequently to the death of her testator could not divest the fee — and parol testimony to show a contrary intent in the testator was held inadmissible. The rulings above cited are not only uniform in England and in this country, but they are consonant with our public policy, which is adverse to tying up estates; and further, in the present case the ruling is consonant with justice, which would be outraged by turning out the parties who have held the realty undisturbed for forty years under mesne conveyances from a purchaser who bought in reliance upon the decree of a court of equity, which, after careful investigation, had adjudged that it had power to order the sale, and by whom the purchase-money in full (which is doubtless more than the property would bring now) was paid over to the trustee named in the will for the benefit of the mother, whose only child is now seeking to recover the premises which have passed from hand to hand in reliance upon the solemn adjudication of the court of equity.

It is proper to say that if the devise had been to A for life, remainder to such children as may be living at her death, a very different case would have been presented. Williams v. Hassell, 73 N.C. 174; S. c.,74 N.C. 434; Young v. Young, 97 N.C. 132; or even if the devise had been to A for life, with remainder to her children. But here the devise to "B and her children (if she shall have any)" is in substance that which has been construed in Wild's case and others above cited to confer upon B, when she has no children at the death of the testator, not a life estate, but an estate tail in England and a fee simple in this (95) country. When words used in a will have received a settled judicial construction the testator is taken as using them in that sense, unless a different intent plainly appears. Applying that rule, the devise here was, in legal effect, to "Sarah and her children, if she shall have any at the death of the testator, and if not, then to Sarah in fee simple," and the law hath been so written "these three hundred years," say the authorities.

NO ERROR.

Cited: Weeks v. McPhail, 128 N.C. 131; Whitehead v. Weaver, 153 N.C. 90;Lewis v. Stancil, 154 N.C. 327; Elkins v. Seigler, ib., 375; Tart v.Tart, ib., 506; Propst v. Caldwell, 172 N.C. 598.