Curry v. . Curry

Hoke, J. It appears from a perusal of the pleadings and the admission of the parties that J. Frank Curry died on .... December, 1921, intestate, owning a lot of realty, and indebted to an amount largely in excess of his personal property, leaving him surviving the petitioner, his widow, and three infant children as his heirs at law, that plaintiff having duly qualified as administratrix, filed this her petition, praying for an allotment of dower in all the lands of which the deceased was seized and possessed, and also to sell such portion of the remainder of the real property as was required to pay the debts; that defendants are the infant children of the deceased, represented by a duly appointed guardian ad litem. There was judgment by the clerk awarding the petitioner dower in all the lands owned by the deceased except one lot in which he had a remainder after a life estate, and that the residue excepting the dower interest, or so much thereof as was necessary, be sold for payment of indebtedness. This judgment was in all respects *84 confirmed by bis Honor, and we find no valid objection tbat can be urged against tbe judgment or tbe proceedings in wbicb tbe same bas been entered. Tbe only exception insisted on by appellants is tbat certain portions of tbe realty devised by tbe will of bis father, W. E. Curry, deceased, conveyed to tbe intestate only a life estate in tbe property. From tbe facts in evidence it appears tbat t'be title to tbe realty referred to and tbe nature and extent of tbe intestate’s ownership is dependent upon tbe following clause in bis father’s will in terms as follows: “I will and bequeath to each of my children an equal share in my real estate, to have and to bold as long as they may live, and after their death to their heirs.” And this, in our opinion, under tbe rule in Shelley’s case, clearly passed to tbe intestate a fee-simple interest in bis portion of tbe property, wbicb bas been duly allotted to him on partition of tbe father’s realty. Wallace v. Wallace, 181 N. C., 158; Nobles v. Nobles, 177 N. C., 243; Robeson v. Moore, 168 N. C., 389; Price v. Griffin, 150 N. C., 523. Tbe prevalence of tbe rule in this State and its pertinency to tbe facts of tbe present record, as well as a recognized instance where tbe rule does not apply, are set forth in tbe recent case of Wallace v. Wallace, as follows, where it was held in part: “1. A limitation coming within tbe rule in Shelley’s case, recognized as existent in this State, operates as a rule of property, passing, when applicable, a fee simple, both in deeds and wills, regardless of a contrary intent on tbe part of tbe testator or grantor appearing in tbe instrument. “2. 'Whenever an ancestor by any gift or conveyance took an estate or freehold, as an estate for life, and in tbe same gift or conveyance an estate is limited either mediately or immediately to bis heirs or to tbe heirs of bis body as a class to take in succession as heirs to him, such words are words of limitation of tbe estate, and conveys tbe inheritance, tbe whole property to tbe ancestor, and they are not words of purchase. “3. In order to an application of tbe rule in Shelley’s case, tbe words ‘heirs’ or ‘heirs of tbe body’ must be taken in their technical sense, or carry tbe estate to tbe entire line of heirs to bold as inheritors under our canons of descent; but should these words be used as only designating certain persons, or confining tbe inheritance to a restricted class of heirs, tbe rule does not apply, and tbe ancestor or tbe first taker acquires only a life estate according to tbe meaning of tbe express words of tbe instrument.” We were referred by counsel for appellants to tbe case of Mills v. Thorne, 95 N. C., 362-364, citing with approval Ward v. Jones, 40 N. C., 400, as authority against application of tbe rule in tbe present case, but we do not so understand those decisions. *85 In the Mills case, as well as that of Ward v. Jones, supra, it was held that annexing the words “to be equally divided between them” to the terms “heirs” or “issue” in the ultimate limitation after a preceding life estate, would prevent the operation of the rule in Shelley’s case. This, as stated in the opinions, was because the use of such qualifying words would change these terms from their hereditable significance and quality under our general canons of descent so as to require a per capita division among the “heirs or issue.” As the estate might therefore be carried to a different line of heirs from those who would take by our general canons of descent under the third position, as taken from the Wallace decision, supra, and the rule in Shelley’s case would not apply and the heirs or issue referred to in ultimate limitation would take and hold as purchasers. But not so here, where there are no qualifying words annexed to the ultimate limitation, but under the father’s will, the estate is in effect devised to the children “in equal portions for life with remainder to their heirs,” without more. Both under the first and the ulterior limitation the property is passed in the same interest and in the same manner as the law of descents would have given it,, and in our opinion as stated the rule in Shelley’s case clearly applies. This being true, the widow of this owner is entitled to her dower, and subject to such interest the creditors or plaintiff, as their representative, is entitled to a sale to make assets as the lower courts have decreed. We find no error in the record, and the judgment is affirmed. Affirmed.