Williams v. . Johnson

DeNny, J. The appellants contend the court below erred in holding that the rule in Shelley’s case does not apply to 'the devise under consideration. The contention is untenable. It is clear that in using the phrase “their bodily heirs or issues surviving them,” the devisor meant children or issue of his grandchildren. Furthermore, this conclusion is supported by the limitation over to the effect that “in the event any of the said grandchildren shall die without leaving him surviving issue or issues, then to his next of kin, in fee. simple forever.” Moore v. Baker, 224 N. C., 133, 29 S. E. (2d), 452; Williamson v. Cox, 218 N. C., 177, 10 S. E. (2d), 662; Edwards v. Faulkner, 215 N. C., 586, 2 S. E. (2d), 703; Brown v. Mitchell, 207 N. C., 132, 176 S. E., 258; Fields v. Rollins, 186 N. C., 221, 119 S. E., 207; Wallace v. Wallace, 181 N. C., 158, 106 S. E., 501; Jones v. Whichard, 163 N. C., 241, 79 S. E., 503; Puckett v. Morgan, 158 N. C., 344, 74 S. E., 15. In the case of Puckett v. Morgan, supra, the devise was to “Martha Morgan . . . during her life, then to her bodily heirs, if any, but if she have none, back to her brothers and sisters.” Brown, J., in delivering the opinion of the Court, said: “In the will now under consideration, we think the testator Pace has so explained and qualified the use of the words ‘her bodily heirs’ as to plainly indicate that he meant the children or issue of his daughter Martha, and that the words are not employed in their legal or technical sense as representing heirs in general, but *735 only as descriptive of a certain class of beirs. Tbe words ‘if any’ would be quite appropriate to indicate tbe possibility of no issue, but not to indicate tbe contingency of no lawful beirs, for it is rarely possible for one to die without beirs, and not uncommon to die without children. Then again tbe reversion over is to a class of beirs at law who would certainly inherit in tbe event of a failure of issue. It is also manifest that tbe testator did not intend that bis daughter should take an estate in fee, for in express words be devised her an estate for life only, and tbe context shows that be intended that her children should take at her death, and in tbe event of her death without children, then that her brothers and sisters should receive tbe property.” Likewise, in Wallace v. Wallace, supra, it was held that a conveyance to C. A. Wallace for life, and after bis death “to his bodily beirs in fee simple, if any, and if none, to go to bis next of kin,” created a life estate only in Wallace, remainder to bis children, if any, and if none, then over to bis next of kin. It seems clear that tbe devisor in tbe instrument under consideration intended to limit tbe estate devised to bis grandchildren to one for life and upon their death to such of their children or issue as might survive them, but if any grandchild should die without issue then to such grandchild’s next of kin. The term “next of kin,” when used in a deed or will in connection with a limitation over upon the failure of issue, nothing else appearing to the contrary, means “nearest of kin” or “nearest blood relation,” and restricts its meaning to a limited class of nearest blood relations, to the exclusion of those enumerated as next of kin in the statute of distribution. Williamson v. Cox, supra; Knox v. Knox, 208 N. C., 141, 179 S. E., 610; Wallace v. Wallace, supra. “The word ‘heir’ or ‘heirs’ is not synonymous with the term ‘nearest blood relation.’ ” Miller v. Harding, 167 N. C., 53, 83 S. E., 25. We think the judgment below must be upheld in so. far as it holds that the living grandchildren of Jesse Phillips, the devisor, have a life estate only in the devised premises. The children of these plaintiffs have a remainder in fee, defeasible upon their failure or the failure of their issue to survive the death of the maternal or paternal ancestor who was a grandchild of the devisor. The defendant Jesse Ray Phillips, being the sole surviving child of Jesse Phillips, deceased, one of the six grandchildren of the devisor, is seized in fee simple of a one-sixth undivided interest in and to the premises, subject to the' life estate of his grandmother, Mrs. Odie Phillips. And should any of the remaining grandchildren die without issue surviving, his or her' interest in the premises will go to his or her next of kin, who will be his or her surviving brothers and sisters, to the exclusion of any issue of a deceased brother or sister. Wallace v. Wallace, supra. *736 The court below held that after the death of the life tenant, Mrs. Odie Phillips, the life tenants and the representatives of such as are deceased, take their interest in said lands per capita and not per stirpes. This ruling is not material in so far as it affects the interest of any of the parties to this action at the present time, the deceased grandchild, Jesse Phillips, having left surviving him only one child. However, the devise under consideration was to the grandchildren of the devisor as a class, and we think it was the intent of the devisor that the children or issue of each grandchild should take per stirpes and not per capita. If he had intended that his grandchildren and their issue should constitute a class and take per capita, there would have been no necessity for a limitation over upon the failure of any grandchild to leave issue surviving, him. See In re Estate of Poindexter, 221 N. C., 246, 20 S. E. (2d), 49, 140 A. L. R., 1138, and Wooten v. Outland, 226 N. C., 245, 37 S. E. (2d), 682, where authorities are assembled in connection with a discussion of the general rule, as to when beneficiaries take per capita and when they take per stirpes. Except as modified herein, the judgment of the court below is affirmed. Modified and affirmed.