Washburn v. . Biggerstaff

Adams, J. The devise is not controlled by the rule in Shelley's case, There is no limitation after a freehold, either mediately or immediately, to the heirs in fee or in tail of the first taker as a class of persons to take in succession from generation to generation. The widow is dead and the controversy is to be determined by an interpretation of the clause, “And at her death or marriage I devise that my real property be equally divided between my two children Kansas 0. Harrill and Gaston Scales Harrill to have and to hold the same during their natural lives for the heirs of their bodies.” It is provided by statute that a devise of real estate shall be held and construed to be a devise in fee simple unless it shall plainly appear that the testator intended to convey an estate of less dignity. C. S., 4162; Barbee v. Thompson, 194 N. C., 411. But in the interpretation, of the devise the cardinal purpose must be to give effect to the intention of the testator as expressed in the will; and for the purpose of arriving at his intention the court may reject, supply, or transpose words and phrases. Gordon v. Ehringhaus, 190 N. C., 147; McIver v. McKinney, 184 N. C., 393; Pilley v. Sullivan, 182 N. C., 493. We do not construe the devise as an attempt to create a trust by making the son and daughter trustees “for the heirs of their bodies.” This interpretation would be directly contrary to the testator’s evident intention. It is quite manifest that he intended to devise his real property to his son and daughter and the heirs of their bodies. Such devise constitutes an estate-tail at common law which, under the act of 1784, is converted into a fee simple. C. S., 1734. In Coon v. Rice, 29 N. C., 217, the bequest was as follows: “I give and bequeath unto my daughter Elizabeth Goon, during her natural life, at the end of which *626 to the only heirs of her body, one negro girl named Riah, this to the aforementioned to them and their heirs forever.” Construing the clause, the Court said: “If the property bad been land, and Joseph Richards bad devised it to bis daughter Elizabeth Coon for life, ‘at the end of which to the only heirs of her body, this to the aforementioned, to them and their heirs,’ it would in law have been an immediate estate tail, vested in Elizabeth Coon. In looking over the whole will there is not a word in it to indicate that the testator intended ‘children’ when be used the words ‘heirs of the body of Elizabeth Coon.’ These words must, therefore, have their legal effect, and inasmuch as they would have created an estate tail in Mrs. Coon if the subject-matter bad been land, they in law create in ber an absolute estate in Eiab, she, Riah, being-personal property.” Judgment Affirmed.