Daniel v. . Bass

Adams, J. With the - exception of the devisees therein named, the second item in each of the three wills is substantially the same, and as Isaac Daniel predeceased his two sisters, we may first consider the words in which he expressed his devise: “To my beloved sisters, Nancy Daniel and Mahala Daniel, ... to them and their heirs forever, if any. If not, to the heirs of my sisters, Mary Jane Hathaway, Celia Bass, and Sallie Rowe, to them and their assigns forever.” It may be said, in the first place, that the devise is not within the scope or provisions of the rulé in Shelley’s case. In Coke’s definition of the rule the word “remainder” does not appear (1 Coke, 104), but in Preston’s it does: “When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and afterwards in the same deed, will or writing there is a limitation by way of remainder, with or without the interposition of any other estate, of an interest of the same quality, as legal or equitable, to his heirs generally or his heirs *297 ■of his body by that name in deeds or writings of conveyance, and by that or some such name in wills, and as a class or denomination of persons to take in succession, from generation to generation, the limitation to the heirs will entitle the persop or ancestor himself to the estate or interest imported by that limitation.” 1 Preston on Estate, 263, et seq. This language was abridged by Chancellor Kent as follows: “When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” 4 Kent’s Com., 215. The doctrine that a remainder, or the “similitude of a remainder,” is an element essential to the rule has been approved in numerous decisions, including Jones v. Whichard, 163 N. C., 241; Reid v. Neal, 182 N. C., 192; Willis v. Trust Co., 183 N. C., 267; Hampton v. Griggs, 184 N. C., 13; Shephard v. Horton, 188 N. C., 787; Benton v. Baucom, 192 N. C., 630. See, also, Hamilton v. Sidwell, 29 L. R. A. (N. S.), 961, and annotation, -973. In the wills under consideration, neither devise creates a remainder, or reflects the semblance of a remainder, and the rule in Shelley’s case is excluded. We are likewise of opinion that Wild’s case has no application. 6 Coke; 16b; 77 Eng. Reports, 277. There the special verdict was to this ■effect: Land was devised to A. for life, the remainder to B. and the heirs of his body, the remainder to “Rowland Wild and his wife, and after their decease, to their children,” Rowland and his wife then having issue, a son and daughter; afterwards the devisor died; and after his •decease A. died; B. died without issue; Rowland and his wife died, and the son had issue, a daughter, and died. Whether the daughter should have the land was the question; and it consisted only upon the consideration what estate Rowland Wild and his wife had — whether they had an ■estate tail or an estate for life, with remainder to their children for life. It was resolved that Rowland and his wife had but an estate for life, with remainder to their children for life, and no estate tail; that the ■devisor’s intent, not his words only, ought to make an estate tail; and that no such intent' appeared. Therefore, this difference was resolved for good law: “If A. devises his lands to B. and his children or issue, and he hath not any issue at the time of the devise, that the same is an ■estate tail; for the intent of the devisor is manifest and certain that his children or issue should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his intent. . . . But if a man devises *298 land to A. and to his children or issue, and they then have issue of their bodies, . . . they shall have but a joint estate.” Illustrations of this rule and instances of its practical application may be seen by reference to a course of decisions beginning with Moore v. Leach, 50 N. C., 88, and continuing in an unbroken line to Boyd v. Campbell, 192 N. C., 398. But we find nothing in either will which attracts this principle. It is evident that “heirs” in the clause “to them and their heirs forever” is not synonymous with “children”; the word as used by the devisors means “the heirs designated by the law to take from their ancestors.” Wool v. Fleetwood, 136 N. C., 460, 469. But the third proposition advanced by Mahala Daniel is not without merit — that is, under each devise the first taker acquired a fee, and the purported limitation over is void for repugnancy. This, of course, is inconsistent with the appellants’ position that Nancy and Mahala took only a life estate, with remainder to the designated children, and that under Nancy’s will Mahala took a half-interest for life, with such remainder in the event of her death without issue. The word “heir” has a technical meaning, and must ordinarily be interpreted according to its technical sense. At common law it signifies a person who succeeds by descent to real estate upon the death of his ancestor. True, the meaning may be explained or controlled by the context, but there is nothing in either will which requires or permits the application of this doctrine. In the expression “to them and their heirs forever” the word “heirs” must be given its technical meaning. Wool v. Fleetwood, supra. The result is that under Isaac’s devise of his property to Nancy and Mahala equally, “to them and their heirs forever,” the devisees took an estate in fee as tenants in common; and the additional words, “if any,” do not change the quantity of the estate. The devise of a fee, “if any,” is still the devise of a fee. These words can appropriately be considered only as related to the succeeding clause: “If not, to the heirs of my sisters,” etc. The appellants say that the fee, if acquired by the first taker, was subject to the asserted limitation, and therefore defeasible. At common law a freehold could not be transferred without livery of seizin, and for this reason a fee could not be limited after a fee; but after 27 Henry VIII (C. S., 1740) was enacted, the doctrine of springing and shifting uses arose, by virtue of which a fee may be limited after a fee by deed or will. Smith v. Brisson, 90 N. C., 284; Willis v. Trust Co., supra. But there can be no limitation of a fee after a fee unless there be some contingency which defeats the estate of the first taker. The prior estate may be a fee defeasible or determinable by the contingency on which it is limited; but such supervening contingency is essential, and it must operate to defeat, abridge, or cut down the prior *299 estate in order to make room for the limitation. McDaniel v. McDaniel, 58 N. C., 351; Boyd v. Campbell, supra. In the wills under consideration, we discover no such contingency. There is no limitation over in the event of the first taker’s death without children or issue; and herein, if in no other respect, the devise differs from that in Massengill v. Abell, 192 N. C., 241. The intent to which we must give heed is not that which the testator may have had in mind if at variance with the obvious meaning of his words, but that which is expressed in the language he has used. McIver v. McKinney, 184 N. C., 393; Gordon v. Ehringhaus, 190 N. C., 147. By devising a fee in the first clause, the testator parted with his entire interest and could not destroy the 'devised estate by means of a totally repugnant clause. The principle, which in the case before us applies to the testator’s real and personal property, is stated in Newland v. Newland, 46 N. C., 463, 467: “If a devise be to A. and his heirs, and if he dies without heirs, then to B., the remainder is repugnant to the estate in fee, and void.” Roane v. Robinson, 189 N. C., 628; Carroll v. Herring, 180 N. C., 369; Hall v. Robinson, 56 N. C., 348. The trial court erred, however, in adjudging that Mahala Daniel is the owner in fee of all the property and estate of which Isaac and Nancy died seized and possessed. Upon the death of Isaac Daniel, his entire estate vested in Nancy and Mahala as joint owners, but as Isaac predeceased Nancy, the interest which he would have taken under Nancy’s will had he survived her lapsed, and in the absence of a residuary clause, the real and personal property given to -him vests in Nancy’s heirs at law and distributees, there being no provision for survivorship, as in Kornegay v. Cunningham, 174 N. C., 209, and similar cases. Johnson v. Johnson, 38 N. C., 426; Winston v. Webb, 62 N. C., 1; Robinson v. McIver, 63 N. C., 645; Twitty v. Martin, 90 N. C., 643; Reid v. Neal, supra. As thus modified the judgment is affirmed. Modified and affirmed.