Tynch v. Briggs

Seawell, J. Although a previous life estate is given to Sarah, in considering the application of the Eule to James’ devise, he is technically the first taker. It is our first concern to determine who were meant by the testator as “lawful heirs” of James as second takers. If the reference is to heirs general, as takers qua heirs in an indefinite line of succession, and nothing else appeared, the application of the Eule is, as said in Hampton v. Griggs, infra, inexorable; if it refers to a restricted class or particular persons of whom the term is merely descriptio per-sonarum, the rule is completely rejected. “If those who take under the Second devise take the same estate they would take as heirs or as heirs of his body, the rule applies, otherwise not.” Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501; Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15; Minor on Real Property, p. 847. The single expression “lawful heirs” does not stand alone. The testator uses the same term in further disposition of the item in a connection that makes it clear he was not, in either instance, referring to general heirs— “in the event the said James should die without lawful heirs then in *605 remainder to my' daughter Sallie Ann for life.” James could not die without heirs (in the general sense) as long as Sallie Ann, his sister, lived. As we have observed, the first use of the term is not final; nor is its second use in a connection irreconcilable with any reference to general heirs the only significant factor in construction: The mere fact of further and more particular disposition of the subject item in the manner set out should be sufficient to defeat the construction contended for by the respondent. On a contextual reading we must regard the language employed in the devise not as referring to general heirs, but as descriptio personarum, and find it impossible to reconcile its use with the rule in Shelley’s case. It does not apply. Hampton v. Griggs, supra; Puckett v. Morgan, supra; Francks v. Whitaker, 116 N.C. 518, 21 S.E. 175; Rollins v. Keel, 115 N.C. 68, 20 S.E. 209; Bird v. Gilliam, 121 N.C. 326, 28 S.E. 489; Williamson v. Cox, 218 N.C. 177, 10 S.E. 2d 662. The judgment is Affirmed.