Cox v. . Heath

ClaeicsoN, J. The question for our decision: Who are entitled to the real estate under the will of the testator, E. H. Heath, who used the words “my nearest heirs?” The testator died 14 November, 1921, and this will was probated 16 November, 1921. The will was made 20 January, 1911, and at the time the testator had a wife, who survived him and died 6 May, 1929. The provision in the will to be considered : “I devise all my real estate whatsoever the same may be, to my wife, Lydia E. Heath, until her death, then I give-' it to my nearest heirs." He had a brother and two sisters living when the will was made and one brother dead; this brother died 28 June, 1898; both brothers left heirs— who are defendants in this action. The other brother died 5 June, 1919. Do the two sisters, plaintiffs in this action, get under the will the entire property left by their brothers as “my nearest heirs,” or do the heirs of the two brothers representing their ancestor get an equal share with their aunts, the plaintiffs? We think that all share alike as “my nearest heirs” — that is, the two sisters get one-half and the heirs of the two dead brothers get one-half, representing their ancestors per stirpes. This Court in Wallace v. Wallace, 181 N. C., at p. 163, citing numerous authorities, said: “And considering the facts further, the grantee, C. A. Wallace, having died without children or issue to take under the' deed, the question recurs as to who are entitled under the ulterior limitation to £his next of kin,’ the claimants being respectively his three surviving brothers, his widow, and the children of deceased brothers and 'sisters. On this question it has been held in this jurisdiction, in a long line of cases in which the question was directly considered, that these *506 words mean ‘nearest of kin’ and that in the construction of deeds and wills, unless there are terms in the instrument showing a contrary intent, the words ‘next of kin,’ without more do not recognize or permit the principle of representation.” In other words, his “nearest of kin” are the nearest blood kin, the three surviving brothers. In the present action we can find no decision in this State deciding who are “my nearest heirs.” If the words “my nearest heirs” were synonymous with the words “his next of kin,” the Wallace case, supra, would govern — but this idea is persuasive but not controlling, as it would destroy the efficacy of the word “heirs.” At the time this will was made the testator had a wife and two sisters, the plaintiffs, and a brother living, and one brother dead who left heirs. The testator was on friendly terms with the family. A brother had died before and after the will was made and before testator died. There is no language in the will to indicate any favorites among the blood. The testator used the words “my nearest heirs.” The word “heirs” has a technical, well defined, meaning. At common law: A person who succeeds by the rules of law, to an estate in lands, tenements and heredita-ments, upon the death of his ancestor by descent and right of relationship. As the word “heirs” was used, to give it meaning, in the absence of contrary intention expressed in the will, we must conclude that the testator intended that the property should go by descent per stirpes. The “nearest heirs” are all those persons upon whom the law would east the inheritance — those who- are heirs are therefore necessarily nearest heirs. In the case of Ward v. Stow, 17 N. C., at p. 512, Gaston, J., says: “An heir is he who succeeds by descent to the inheritance of an ancestor, and in this, its appropriate sense, the word comprehends all heirs, and the heirs of heirs ad infinitum, as they are called by the law to the inheritance. This succession is regulated by the canons of descent. According to one of these, the lineal descendants of any person deceased represent their ancestor, or stand in the place in which such ancestor would have stood if living at the time of the descent cast, and it is this taking by a right of representation which is termed a succession per stirpes or by stocks, the branches taking the same share which their stock would have taken.” Witty v. Witty, 184 N. C., 375. In the case of Kello v. Kello's Executors, 127 Va. Rep., at p. 379-80, ’we find the following: “In the ease of Gwynne v. Muddock, 14 Ves., p. 488, the Court construing the words ‘nighest heir at law’ held: ‘It would be contrary to the intention to divide them (i. e., the real and personal property devised), and it would be contrary to the words to give the whole to the next of kin. Therefore, the Court has no alternative but to adhere to the words of the will, and permit the person who answers the *507 description of beir at law to enjoy tbe whole.’ This case would seem in point as the next of kin were before the court as claimants. The court awarded the estate to the heirs at law apparently upon the theory that the persons who would take as heirs at law were necessarily the nearest heirs at law. Having in mind that the word 'heirs’ means the next of kin according to our statute of descents, and therefore, the persons upon whom the law would cast the estate in the event of intestacy, the words 'nearest heirs’ used by the testator, John G. Hello, are equivalent to the words 'nearest heirs at law,’ which are the precise words construed by Sir "William Grant in the case cited, supra. The word ‘heirs,’ when unexplained and uncontrolled by the context, must be interpreted according to its strict technical import, in which sense it obviously designates the person or persons appointed by law to succeed to the real estate in case of intestacy. 2 Jarman (5 ed.), p. 61; Tillman v. Davis, 95 N. Y., 24, 47 Am. Rep., 1.” See Croom v. Herring, 11 N. C., 395; Fields v. Rollins, 186 N. C., 221; Clark v. Clark, 194 N. C., 288. For the reasons given the judgment of the court below is Affirmed.