Leathers v. . Gray

Davis, J., (after stating the facts). The sole question presented for our consideration is, did Parthenia Leathers take •an estate in fee, under the will of Joseph Armstrong, by the •operation of the Rule in Shelley’s case — or did she take only an estate for life, with remainder to her children? In what sense were the words “heirs or heiresses” used by the testator? Were they used to denote the indefinite succession of persons in infinitum, technically designated by the word “heirs?” If so, the Rule in Shelley’s case applies, and Par-thenia took an estate in fee. Prof. Minor, in his “ Institutes,” page 395, says: “ The rule is not a means to discover the intention of the grantor or testator, but supposing the intention ascertained, the rule controls it, giving effect to the general and legal, rather than to the more particular and prescribed intent. The party making such a limitation, has in his mind two purposes, which are legally in conflict. One is to give the ancestor only a life estate; the other to limit the land to his heirs collectively, and in indefinite succession. These two intents cannot stand *551 together, without more or less of general mischief to the public welfare; and the rule prevails, simply to subordinate the particular, and apparently-less important design of limiting the ancestor’s- interest to a. life. estate,-to the more comprehensive, and probably the preferred purpose of transmitting the inheritance in the manner -indicated. If this double intent appears, the rule must prevail, but if' it can be plainly collected from the will, that the testator used the word “ heirs,” as a descriptio personarum, then the rule in Shelley’s case is not applicable. The word “ heirs,” or “heirs of the body,” must be used in its technical sense, as importing a class of persons to take indefinitely in succession. Hence, if it appears that the words were not employed in this sense, but inaccurately, as designating particular individuals only, the rule in Shelley’s case would not be applicable ; but the persons who, at the time of the limitation, were the ancestor’s heirs apparent, or presumptive, would take a vested remainder.” Minor’s Institutes, 395. In the case of Jarvis v. Wyatt, 4 Hawks, 254, an effect was given to the words, “ heirs of the body,” which seems not to have been followed or referred to in subsequent cases in this State. In that case Judge Hall says : “ But there is another view of this case, taken by my brother HeNdbeson, to which I altogether subscribe, which leads to the same result; and that is, that the words “ heirs of the body,” give an estate in fee by purchase, although there is an estate for life to the parent preceding it, because heirs of the body are not heirs general, and our law, since estates in tail are done away with, recognizes none as heirs, except such as can inherit collaterally as well as lineally; and that, although when there is an estate for life to the parent with remainder to his heirs, both estates unite in the parent, under the operations of Shelley’s case; yet there can be no such union when the remainder is to heirs of the body. Our law knows of no such heirs; of course they are words of description, and those that take under them must *552 take as purchasers. In England the case is otherwise, because heirs of the body are recognized as heirs, and can inherit as such.” A different view from this was taken in the case of King v. Utley, 85 N. C., 61. Although the rule in Shelley’s case was more strictly observed in England than in the United States, even there where it clearly appears that the words heirs or heirs of the body, were intended by the testator as descriptio personx, they are words of purchase; Theoball’s Law of Wills, 340-342, and the numerous cases there cited. Any superadded word that would change the course of indefinite succession, implied by the word “heirs” in its technical sense, takes the case out of the operation of the rule, as for instance, in England, when the gift is for life, “remainder to heirs female,” for that is a change of the course of descent. Were the words “heirs or heiresses,” used by the testator, Joseph Armstrong, in a technical sense; or, did he mean by them, children — " sons and daughters ?” In the same clause of the will, he gave to his son, James W. Armstrong, one half of the land absolutely, and if he intended that Parthenia should have a similar estate, why should the form of the gift have been changed? Why give it to her for “ her natural life,” if he intended that she should have a fee ? And why add the words “ or heiresses,” if he meant to use the words technically ? We think the words “ heirs or heiresses,” used in the will of Joseph Armstrong were intended in no technical sense, but in a sense not unusual, as children — sons or daughters — and that the rule in Shelley’s case does not apply. It would often defeat the intention of testators if wills written inops consillii, should be construed technically; and we think the intent of the testator in this case is apparent, and that is, that Parthenia should have only a life estate, *553 and that a new stock of inheritance should be created in her sons and daughters. There is error. Let this be certified. Error. Reversed.