Hartman v. . Flynn

Varser, J. It is conceded that, if the rule in Shelley’s case applies to this devise to Shack Flynn, the judgment of the trial court must be affirmed. The rule in Shelley’s case is imbedded in the jurisprudence of North Carolina as a well-settled rule of property. Whatever may have been its status prior to that time, it was set at rest by Starnes v. Hill, 112 N. C., 1. At that time it was debated, in the minds of some, that the statute, now C. S., 1739, had the effect of abolishing this rule, but this is Uow no longer an open question. We find a most interesting and learned discussion of this doctrine in Mordeeai’s Law Lectures, Vol. 1, 649 et seq. An elaborate discussion also appears in 24 R. C. L., 887. A complete American judicial history of this rule appears in the very elaborate treatise in 29 L. R. A. (N. S.), 963-1170, with a list of the North Carolina cases on pages 1165-1166. In Hampton v. Griggs, 184 N. C., 13, it is said: “Whatever reasons, pro and con, may have been advanced originally in support of the wis *454 dom or impolicy o£ following the rule in Shelley’s case, so far as the courts of North Carolina are concerned, this is no longer an open question.” “Much has been said in support of its adoption, and something in criticism; but, with us, it is a rule of property as well as a rule of law, and we must observe it wherever the facts call for its application. The Legislature alone may change it if it is thought to be unsuited to the needs of our day or to the industrial life of our times. It is one of the ancient landmarks which the fathers have' set in the law, as it relates to the subject of real property, and we should be slow to remove it.” In this case the following prerequisites to the application of the rule in Shelley’s case are collated and announced: “(1) There must be, in the.first instance, an estate of freehold in the ancestor or by the first taker; and (2) the ancestor must acquire this prior estate by, through, or in consequence of the same instrument which contains the limitation to his heirs; (3) the words ‘heirs’ or ‘heirs of the body’ must be used in the technical sense as importing a class of persons to take indefinitely in succession, from generation to generation, in the course marked out by the canons of descent; (4) the interest acquired by the ancestor and that limited to his heirs must be of the same character or quality- — -that is to say, both must be legal,’ or both must be equitable, else the two would not coalesce; and (5) the limitation to the heirs must be of an inheritance, in fee or in tail, and this must be made by way of remainder.” In the first place, the defendant asserts the nonapplicability of the rule in Shelley’s case, because of the contingent life estate of Mattie Flynn, wife of Shack Flynn. In Daniel v. Harrison, 175 N. C., 120, the identical question was decided, and the provision for Fannie A. Daw during her widowhood was held not to interfere with the application of the rule in Shelley’s case. In Smith v. Smith, 173 N. C., 124, the same question was presented. In that case the devise was: “I loan to my son, D. L. Smith, two tracts of land (describing same), to have during his life, at his death to his bodily heirs and to his wife her lifetime or widowhood.” The second intervening estate, during “her lifetime or widowhood,” did not prevent the application of the rule. In Jones v. Whichard, 163 N. C., 243, the rule is stated thus: “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 interposition of another estate, of an interest of the same legal or equitable quality to his heirs, *455 or beirs of bis body, as a class of persons to take in succession, from generation to generation, tbe limitation to tbe beirs entitled tbe ancestor to tbe whole estate.” In Nichols v. Gladden, 117 N. C., 497, tbe rule as given in 1 Coke, 104, is stated thus: “That when tbe ancestor, by any gift or conveyance, taketb an estate of freehold, and in tbe same gift or conveyance an estate is limited either mediately or immediately to bis beirs, in fee or in tail, tbe word ‘beirs’ is a word of limitation of tbe estate and not a word of purchase.” We see that these statements are necessarily tbe same. Tbe words “either with and without tbe interposition of another estate” in tbe one «perform tbe same office as tbe words “either mediately or immediately” in tbe other. Ex vi ierminorum they include tbe contingent estate, durante viduitate, as provided in the instant case. Smith v. Smith, supra. “Tbe interposition of a life estate in another does not interfere with tbe operation of tbe rule, so far as tbe beirs are concerned, when tbe estate comes to them they take by descent -and not by purchase, and tbe ancestor, or first taker, has full power of control over tbe property, and may sell or encumber as a full owner may, subject only to estate in remainder to tbe wife during her life or widowhood, and tbe rights incident to it.” Smith v. Smith, supra; Cotton v. Moseley, 159 N. C., 1; Edgerton v. Aycock, 123 N. C., 134; Kiser v. Kiser, 55 N. C., 28; Quick v. Quick, 21 N. J. L., 13. We therefore conclude that tbe contingent estate of Mattie Elyn'n does not prevent tbe application of tbe rule in Shelley’s case. It is further contended that tbe words “bodily beirs” are not tbe same as “beirs of tbe body.” This has been adjudicated with definiteness and certainty against defendant’s contention. Blake v. Shields, 172 N. C., 628. In tbe instant case it is clear that tbe use of “bodily beirs” is not a descriptio personarum, but tbe use is in tbe technical sense, Revis v. Murphy, 172 N. C., 579; Jones v. Ragsdale, 141 N. C., 201; Daniel v. Harrison, supra. In Bank v. Dortch, 186 N. C., 510, Hoke, J., afterwards Chief Justice, again reviews tbe authorities with a wealth of learning and clearness, and decides tbe same contention against what is now tbe defendant’s contention in tbe instant case. In Walker v. Butner, 187 N. C., 535, this Court continues to reaffirm this well-established rule, and gives as a real present-day reason for its extended life by tbe courts, and by tbe sufferance of Legislature, that “it prevents tbe tying-up of real estate by making possible its transfer one generation earlier, and also subjecting it to tbe payment of tbe debts of tbe first taker.” *456 Tbe Court also says: “It is doubtless, for tbis reason, that tbe rule bas never been repealed in North Carolina.” Accordingly, we are of opinion tbat tbe devise in tbe instant case comes clearly witbin tbe rule in Shelley’s case, and bad tbe effect to vest into Shack Flynn an estate in fee simple in tbe lands devised, subject to an estate in favor of Mattie Flynn, bis wife, contingent upon her survival of him and during her widowhood. Inasmuch as her rights, as well as tbe homestead rights of Shack Flynn, are fully protected, let tbe judgment of tbe trial court be Affirmed.