McSwain v. . Washburn

AlleN, J. The question involved in this appeal has been settled by numerous decisions of this Court, and that is that under language like that used in items three and six of the will of Judith Price the 'first taker has an estate in fee under the rule in Shelley's case. In Leathers v. Gray, 101 N. C., 162, the language was to P. “during his natural life, and after her death to the begotten heirs or heiresses of her body”; in Tyson v. Sinclair, 138 N. C., 24, the devise was to a grandson “during the term of his natural life, then to the lawful heirs of his body”; in Pitchford v. Limer, 139 N. C., 13, to P. “for life, and after his death to his heirs forever”; and in Perry v. Hackney, 142 N. C., 368, the testator devised to his granddaughter the use and benefit and profit of his land during his natural life, and to the lawful heirs of her body after her death, and in all these cases it was held that the first taker had an estate in fee. In the last case the Court says: “Where the ancestor, by any gift or conveyance, takes 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, always,' in such case, ‘the heirs’ are words of limitation *365 of the estate, and not words of purchase, and superadded words of limitation, not varying the course of descent, do not prevent the application of the rule. Shelley’s case; 1 Coke, 104. The rule applies only where the same persons will take the same estate, whether they take by descent or purchase, in which case they are considered to take by descent. Ward v. Jones, 40 N. C., 400; Howell v. Knight, 100 N. C., 257. They who take in remainder must take in the quality of heirs according to the course of descent established by law. The rule is one of law, and not merely one of construction for the purpose of ascertaining the intentiqn, and when the words of the limitation bring the case within the rule it applies, regardless of the intent, or, if expressed differently, the intention is presumed to be in accordance with that which the law implies from the use of words having a fixed and definite meaning.” . The 110% acres on the west end of the 221-acre tract can be easily ascertained and identified under the rule laid down by Pearson, O. J., in Stewart v. Salmonds, 74 N. C., 519, and approved in Webb v. Cummings, 127 N. C., 43. There is No error.