Buckner v. . Maynard

ClaRKSON, J. We think the only question for our decision is whether the deed from James Buckner and Sarah Ann Buckner vested a fee-simple title in Eller Riddle, or an estate as tenants iii common in Eller Riddle and her children. We think an estate vested as tenants in common in Eller Riddle and her children. *804 There is no question under our authorities that standing alone the language under the witnesseth clause “do grant, bargain, sell and convey to the said Eller Biddle and children her bodily heirs and assigns” would convey a fee simple. Harrington v. Grimes, 163 N. C., 76. In the Harrington case, supra, the deed in the premises was (a) “to N. J. Buckner and her bodily heirs” in the witnesseth clause (b) “convey to said N. J. Buckner and her bodily heirs and assigns” habendum clause (c) “and her bodily heirs and assigns” warranty clause (d) “covenant with the said N. J. Buckner and her bodily heirs and assigns.” In that case at p. 79, it is said: “But no such intent can be gathered from this instrument, nor does it contain any words or expressions to qualify or affect the ordinary meaning of the words ‘bodily heirs’ in connection with the estate limited to N. J. Buckner, and the deed, as stated, has been properly held to convey to such grantee an estate in fee simple.” Under the law prior to C. S., 1734, the deed conveying the land to “her bodily heirs” would have conveyed a fee tail, which, under the statute, supra, was converted into a fee simple. We think the cases of King v. Stokes, 125 N. C., 514; Acker v. Pridgen, 158 N. C., 337, and Puckett v. Morgan, 158 N. C., 344, are more controlling than the Harrington case, supra. In the Puckett case, supra, at p. 348, is the following: “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 only as descriptive of a certain class of heirs.” In Ellington v. Trust Company, 196 N. C., p. 755, it is written: “The guiding star in the interpretation of wills, to which all rules must bend, unless contrary to some rule of law or public policy, is the intent of the testator, and this is to be ascertained from the four corners of the will, considering for the purpose the will and any codicil or codicils as constituting but one instrument. 28 R. C. L., 211, et seq.” Boyd v. Campbell, 192 N. C., 398. In ascertaining the intent of the testator, we think an estate vested as tenants in common in Eller Riddle and her children. We construe the entire will to sense the intent (1) In the premises the conveyance purports to be to "Eller Biddle and her children.” (2) In the witnesseth clause "convey to the said Eller Riddle and children her bodily heirs and assigns.” The words “her bodily heirs” we think have reference to “and children” and affects the ordinary technical meaning “her bodily heirs.” This construction would reconcile with the clear language in the premises. The words were used as descrip>tio personae and not 'in *805 their technical sense. The habendum clause is left blank and the warranty clause is stricken out. We think the better interpretation is that the land vested in “Eller Riddle and her children.” This at least is clear language in the premises, and the other part of the deed can be reconciled with this construction. Twice in the deed (1) “Eller Riddle and her children” (2) “Eller Riddle and children,” etc. Martin v. Knowles, 195 N. C., 427, is easily distinguishable from the present case. In Tate v. Amos, 197 N. C., at p. 161, citing numerous authorities, is the following: “This Court has uniformly held that a devise to ‘A’ and her children, ‘A’ having children, vests the estate to them as tenants in common.” The judgment below is Reversed.