Wachovia Bank & Trust Co. v. Lindsay

Stacy, C. J. Are those “who would have been” the testator’s “heirs and distributees,” had he died intestate, and who are designated as the *654 ultimate takers of two-thirds of his property, to be ascertained and determined as of the date of his death, or at the time of the death of the life tenant? The answer is, At the death of the testator. Witty v. Witty, 184 N. C., 375, 144 S. E., 482; Dixon v. Pender, 188 N. C., 792, 125 S. E., 623; Baugham v. Trust Co., 181 N. C., 406, 107 S. E., 431. Had the testator died without making a will, undoubtedly his heirs and distributees would have been determined as of the date of his death, for as said by Blaekstone: “An heir is he upon whom the law casts an estate immediately on the death of the ancestor.” II Blk., ch. 14; Welch v. Gibson, 193 N. C., 684, 138 S. E., 25; Yelverton v. Yelverton, 192 N. C., 614, 135 S. E., 632. To hold otherwise would be to take from such words their ordinary and natural meaning and give to them an artificial or hypothetical significance. Jenkins v. Lambeth, 172 N. C., 466, 90 S. E., 513; 69 C. J., 262; 23 R. C. L., 549. It is only when the testator uses such words in a different sense — which, of course, he may do — that they are given the artificial signification intended by him. Scales v. Barringer, 192 N. C., 94, 133 S. E., 410; Bowen v. Hackney, 136 N. C., 187, 48 S. E., 633. Speaking to the general rule in Bullock v. Downes, 9 H. L. Cases, 1, Lord Campbell said: . “Generally speaking, where there is a bequest to one for life, and after his decease to the testator’s next of kin, the next of kin who are to take are the persons who answer that description at the death of the testator, and not those who answer that description at the death of the first taker. Gifts to a class, following a bequest of the same property for life, vest immediately upon the death of the testator. Nor does it make any difference that the person to whom such previous life interest was given is also a member of the class to take on his death.” In interpreting the present will, the court below applied the general rule, and in this we find no error. Moreover, it appears that the parents and grandparents of the appealing defendants have heretofore received the very property in controversy in a division and settlement with the widow, on the assumption and belief that they were entitled to same as vested remaindermen. This settlement was approved by order of court, in a proceeding brought for the purpose, and it will not be disturbed, because in a limitation by way of remainder to a class, the law calls the roll of the class immediately upon the vesting of the estate, and those who can answer, take. Fulton v. Waddell, 191 N. C., 688, 132 S. E., 669. At the call of the roll in the instant case, the brother, sister, and nephew of the testator answered. They alone took. So said the law in 1907. So says it now. Affirmed.