Everett v. . Griffin

Allen, J., after stating the case: “The direction to sell land operates .as an equitable conversion, and the property or proceeds thereof pass to the beneficiary as personalty.” Lee v. Baird, 132 N. C., 755. 7111 of the text-books and the decided cases support this principle, which rests upon the doctrine that equity regards that as done which ■ought to be done. 3 Pom. Eq. Jur., sec. 1159; Bispham’s Eq., sec. 307; 2 Underhill on Wills, 957; McCabe v. Spruill, 16 N. C., 189; Elliott Loftin, 160 N. C., 361. We must then deal with the proceeds of sale as personal property, and keeping in mind that “when language is used having a clearly defined legal signification, there is no reason for construction to ascertain the intent; it must be given its legal meaning and effect.” Campbell v. Cronly, 150 N. C., 469. Let us see what is meant by the words “heirs of puch of my children as may not be living at my death,” and whether the word “heirs” used in connection with the- disposition of personalty has a clearly defined legal signification. The word is ordinarily used to describe one upon whom the law casts the inheritance upon the death of the person last seized, and it has been frequently construed to mean issue or children, when this appears to *109 have been the intent of the testator, but when used in connection with the disposition of personalty, and no contrary intent appears, the authorities in this State and elsewhere hold that it refers to those who take under the statute, distributing the personal estates of deceased persons. The Court says, in Croom v. Herring, 11 N. C., 398: “Exclude the idea of blood, and it is matter of surprise how it could be doubted that the widow is not included in the word ‘heir,’ when applied to personal property. Her claims to the succession are precisely the same with the next of kin; both unknown to the common law, and both given by the same statute.” In Freeman v. Knight, 37 N. C., 75: “The ninth clause of the will is in these words: ‘It is also my will that Big Sam and Isaac should be sold and the proceeds equally divided between my legal heirs.’ Who are the persons .thus designated ? Is the wife one ? Are the children of a deceased child included in the description? And if they be, do they take as designated persons per capita, or the share of the parent whom they represent? These inquiries would open a wide field for speculation, in which great ingenuity and learning have been exerted and expended, but that we feel ourselves bound to follow out the construction which in a very similar case was sanctioned by our predecessors in Croom v. Herring, 11 N. C., 393. It was there determined that when a testator makes an immediate gift of personal property to ‘his heirs,’ he •means a gift to those whom the law has appointed to succeed .to the personal estate of dead men, who have made no appointment themselves.’ If so, it includes the widow, and it includes the children of a deceased child.” In Corbett v. Corbett, 54 N. C., 117, “The word ‘heirs’ is not appropriate to the disposition of personal property; and when used in reference to it, means those who take by law or under the statute of distribution.” In Brothers v. Cartwright, 55 N. C., 116, in which land was directed to be sold and the proceeds distributed, “The land directed to be sold by the second clause became personal estate at the death of the testator’s widow, when the sale was to be made. Croom v. Herring, 11 N. C., 393; Adams Eq., 136. The division of the proceeds was then to take place, and it must be among those of his children who were then living and the heirs of those who had died, either before the testator or after his death and before the death of his widow. By heirs, as applied to a bequest of personal estate, it is settled that those are to take who are entitled according to the provisions of the statute of distributions. Croom v. Herring, ubi supra ; Freeman v. Knight, 37 N. C., 72”; and in Lee v. Baird, 132 N. C., 765, in which the executor was directed to sell certain lots and divide the proceeds among all the heirs of the tes *110 tator, “Tbe direction to sell operates as an equitable conversion, and tbe property or proceeds thereof pass to tbe beneficiaries as personalty. Mills v. Harris, 104 N. C., 626; Benbow v. Moore, 114 N. C., 263. Therefore, tbe word 'heirs’ must be understood and construed to describe those persons who would take as distributees.” In 40 Oye., 1464, tbe author says: “Tbe word 'heirs’ in a will, when applied to real estate, primarily means persons so related to one by blood that they would take the estate in case of intestacy; and when applied to personalty, primarily means next of kin or those persons who would take under the statute of distribution in case of intestacy, and this rule applies where the will directs realty to be sold and the proceeds paid to his heirs.’ And in 2 Underhill on Wills, sec. 619, the rule is thus stated: "The word ‘heirs,’ in gifts of personal property, means next of Join. In the case of a gift of personal property made either to the heirs of the testator or to the heirs of another person, the question may arise whether the word 'heirs’ is employed as meaning those to whom land descends, which is its ordinary sense, or whether it is used to indicate those only who take the personal property in intestacy. Where personal property alone is bequeathed to the heirs, either of the testator or of an'other person, and the will itself does not show that the testator has employed the word in its technical sense, it may be presumed that the. testator has used it to indicate the next of kin, according to- the statute, who succeed to the personal property in case of intestacy.” See, also, 4 Words and Phrases, 3253, where many decided cases are cited in support of the proposition that the word “heirs” when used in connection with the disposition of personal property means those who take under the statute of distributions. There is nothing in this will to show a contrary intent, and we must give to the word its accepted meaning. It follows, therefore, that the appellant is entitled to share in the proceeds of sale as a distributee of her husband, and as Dora, one of the children, died before the testator, leaving no child and not having married, and as at the death of the testator there were four children alive and the representatives of four who were dead, including Frank, she is entitled to one-sixteenth of the proceeds, or one-half of one-eighth, the share of Frank, under the statute of distributions (Bev., sec. 132, subsec. 3), which gives to the widow one-half of the personalty when there is no. child nor legal representative of a deceased child. Beversed.