Kornegay v. . Cunningham

Allen, J. The language in tbe devise, “and if sbe should die without a lawful heir of her body,” in tbe connection in which it is used, means children, under any decisions of this Court. Smith v. Lumber Co., 155 N. C., 389; Bizzell v. Loan Assn., 172 N. C., 159; Allbright v. Allbright, 172 N. C., 352, and the cases cited in these opinions. It is also equally well settled that under the provisions of the will, the daughters took a fee simple estate, subject to be defeated upon dying without leaving a child. Whitfield v. Garris, 134 N. C., 24; Ford v. McBrayer, 171 N. C., 420. If so, under the plain language of the will, upon the death of Sarah John, leaving no child surviving her, the tract of land devised in item 4 pasesd in fee simple to the two surviving daughters, Huldah Ann and Harriet Susan, who were the only heirs of Hymbric Hill, the testator, and of Sarah John, the deceased daughter, and upon the death of Huldah Ann the land devised to her in item 3 and her interest in the land devised to Sarah John passed in like manner and for the same reason to the last surviving daughter of the plaintiff. There is nothing in the will to support the contention of the appellants, heirs of Hymbric Hill, that upon the death of the two, Sarah John and Huldah Ann, the land devised to them passed to the surviving daughter, Harriet Susan, with the defeasible quality annexed to the title, and on the contrary the will says that upon the death of one leaving no children “the property is to go to the other surviving heirs,” which, in the absence of qualifying words, means to them absolutely. The appellants further contend that in any event they are entitled to the land devised to Harriet Susan, and here the case depends on the meaning of the words, “to the other surviving heirs.” Do they mean the surviving heirs of the testator or the surviving heirs of the devisee? Under either construction, the whole of the property would pass under the will, so that no light is thrown on the question by the presumption against intestacy. It appears, however, from the will, that it was the intention of the testator that his daughter should not have an absolute estate in fee if she died leaving no children, and this intention would be defeated if we held that “surviving heirs” meant “her surviving heirs.” *211 If we adopted tbis construction, contended for by tbe appellee, tbe devise would be to bis daughter in fee if she left children, and if she left no children, then to her heirs; and under the latter contingency she would hold in fee under the Eule in Shelley’s Case, which 'operates "“Where the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same instrument an estate is limited, either medi-ately or immediately, to his heirs in fee or in fee tail, the heirs are words of limitation of the estate and not of purchase.” Ford v. McBrayer, 171 N. C., 420. This would be to impute to the testator the employment of many meaningless words, the imposition of limitations upon the devises to his daughters having no legal effect, and would be contrary to the intent expressed in the will, that the daughters were not to have a fee if they left no children. We are therefore of opinion that Harriet Susan died seized in fee of the land devised in items 3 and 4 of the will, and that the heirs of Hym-bric Hill are the owners of the land devised in item 2 as his surviving heirs. The appellee will pay the costs of the appeal. Modified and affirmed.