{ "id": 8550459, "name": "JOHN JUNIOR WHITE, JAMES DONALD WHITE, VIRGINIA GREEN, LILLIE W. PATE, Petitioners v. MILDRED FUTRELL LACKEY, and MARGARET FUTRELL DeLOATCHE, Respondents", "name_abbreviation": "White v. Lackey", "decision_date": "1979-03-20", "docket_number": "No. 786SC267", "first_page": "353", "last_page": "360", "citations": [ { "type": "official", "cite": "40 N.C. App. 353" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "155 S.E. 2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570430 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0715-01" ] }, { "cite": "50 S.E. 450", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "opinion_index": 0 }, { "cite": "138 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268552 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/nc/138/0023-01" ] }, { "cite": "48 S.E. 661", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1904, "opinion_index": 0 }, { "cite": "136 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659126 ], "year": 1904, "opinion_index": 0, "case_paths": [ "/nc/136/0160-01" ] }, { "cite": "80 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627055 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0386-01" ] }, { "cite": "74 S.E. 15", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1912, "opinion_index": 0 }, { "cite": "158 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655395 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/nc/158/0344-01" ] }, { "cite": "54 S.E. 2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631354 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0603-01" ] }, { "cite": "160 S.E. 2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575858 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0615-01" ] }, { "cite": "28 S.E. 489", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1897, "opinion_index": 0 }, { "cite": "121 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653126 ], "year": 1897, "opinion_index": 0, "case_paths": [ "/nc/121/0326-01" ] }, { "cite": "2 S.E. 2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630930 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0586-01" ] }, { "cite": "113 S.E. 501", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1922, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "184 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268876 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/184/0013-01" ] }, { "cite": "135 S.E. 629", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "opinion_index": 0 }, { "cite": "192 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625647 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/nc/192/0630-01" ] }, { "cite": "122 S.E. 301", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1924, "opinion_index": 0 }, { "cite": "187 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654368 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nc/187/0535-01" ] }, { "cite": "93 S.E. 446", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1917, "pin_cites": [ { "page": "448", "parenthetical": "Clark, C.J., concurring" }, { "page": "448", "parenthetical": "Clark, C.J. concurring" } ], "opinion_index": 0 }, { "cite": "174 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252533 ], "year": 1917, "pin_cites": [ { "page": "91-92", "parenthetical": "Clark, C.J., concurring" } ], "opinion_index": 0, "case_paths": [ "/nc/174/0088-01" ] }, { "cite": "20 N.C.L. Rev. 49", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1941, "opinion_index": 0 }, { "cite": "138 S.E. 25", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1927, "pin_cites": [ { "page": "28" } ], "opinion_index": 0 }, { "cite": "193 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217752 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nc/193/0684-01" ] }, { "cite": "79 S.E. 503", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "pin_cites": [ { "page": "504-05" } ], "opinion_index": 0 }, { "cite": "163 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271448 ], "year": 1913, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/nc/163/0241-01" ] } ], "analysis": { "cardinality": 654, "char_count": 14962, "ocr_confidence": 0.797, "pagerank": { "raw": 2.2800541494787275e-07, "percentile": 0.7850529123512606 }, "sha256": "718d21cb574a6ae58d6da6eab254fbf362e92a48db21b650f4bb9118b2f2546b", "simhash": "1:f22c9173d925fc2e", "word_count": 2693 }, "last_updated": "2023-07-14T20:01:10.825727+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Clark concur." ], "parties": [ "JOHN JUNIOR WHITE, JAMES DONALD WHITE, VIRGINIA GREEN, LILLIE W. PATE, Petitioners v. MILDRED FUTRELL LACKEY, and MARGARET FUTRELL DeLOATCHE, Respondents" ], "opinions": [ { "text": "VAUGHN, Judge.\nIf the rule in Shelley\u2019s Case applies to the devise, Jesse Naomi Warren was vested with a fee tail estate converted to a fee simple estate by operation of G.S. 41-1, and the judgment should be affirmed. The rule in Shelley\u2019s Case is as follows:\n\u201c \u2018When 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, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.\u2019 \u201d Jones v. Whichard, 163 N.C. 241, 243, 79 S.E. 503, 504-05 (1913).\nIf the persons who take under the second devise take the same estate they would take as heirs of the ancestor, the rule in Shelley\u2019s Case will apply. Welch v. Gibson, 193 N.C. 684, 138 S.E. 25 (1927).\nThe rule in Shelley\u2019s Case takes its name from an early English case, Wolfe v. Shelley, 1 Co. 93b, 76 Eng. Rep. 206 (C.B. 1581), although it was the common law of England prior to that time. Block, The Rule in Shelley\u2019s Case in North Carolina, 20 N.C.L. Rev. 49 (1941). The original objective of the rule was to\n\u201csecure the feudal owners of lands against the loss of ward-ships and other \u2018rake offs\u2019 upon which the feudal lords lived at a time when land was the principal wealth and the foundation of dignity and influence. The rule is a highly technical one, for it contradicts the plain expression of the intent of the grantor or devisor .... It has led to much litigation, but the feudal lords needed such protection against the loss of those feudal incidents which would have been ousted if the heir of the grantee or devisee had taken as purchaser and not as successor.\u201d Cohoon v. Upton, 174 N.C. 88, 91-92, 93 S.E. 446, 448 (1917) (Clark, C.J., concurring).\nAlthough feudal tenures were abolished in the seventeenth century, the rule in Shelley\u2019s Case continued in England and was brought to this country. Cohoon v. Upton, supra.\n\u201cThe rule at this time serves an excellent but an entirely different purpose in this State, in that it prevents the tying up of real estate by making possible its transfer one generation earlier, and also subjecting it to the payment of the debts of the first taker. It is doubtless for this reason that the rule has never been repealed in North Carolina.\u201d Cohoon v. Upton, supra, at 92, 93 S.E. at 448 (Clark, C.J. concurring), quoted in Walker v. Butner, 187 N.C. 535, 122 S.E. 301 (1924).\nIn order for the rule in Shelley\u2019s Case to apply, it is generally said that (1) there must be an estate of freehold in the ancestor; (2) the ancestor must acquire that estate in the same instrument containing the limitation to his heirs; (3) the words \u201cheirs\u201d or \u201cheirs of the body\u201d must be used in the technical sense meaning an indefinite succession of persons, from generation to generation; (4) the two interests must be either both legal or both equitable; and (5) the limitation to the heirs must be a remainder in fee or in tail. Benton v. Baucom, 192 N.C. 630, 135 S.E. 629 (1926); Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501 (1922).\nThe rule in Shelley\u2019s Case is a rule of law and not a rule of construction. Hampton v. Griggs, supra. Generally, the intent of the testator would not be relevant. Nevertheless,\n\u201c \u2018[t]he true question of intent would turn not upon the quantity of estate intended to be given to the ancestor, but upon the nature of the estate intended to be given to the heirs of his body.\u2019 The first question, then, to be decided is whether the words \u2018heirs\u2019 or \u2018heirs of the body\u2019 are used in their technical sense; and this is a preliminary question to be determined, in the first instance, under the ordinary principles of construction without regard to the rule in Shelley\u2019s case.\u201d (Citation omitted.) Hampton v. Griggs, supra, at 16, 113 S.E. at 502.\nThe question presented to this Court, therefore, is what did the testator mean when he used the term \u201clawful heir or heirs of her body.\u201d\nAn ulterior limitation which provides for a substitute devise in the event the ancestor dies without leaving heirs can be one indication of the testator\u2019s intent.\n\u201cWhen there is an ulterior limitation which provides that upon the happening of a given contingency, the estate is to be taken out of the first lines of descent and then put back into the same line, in a restricted manner, by giving it to some, but not to all, of those who presumptively would have shared in the estate as being potentially among the heirs general of the first taker, this circumstance may be- used as one of the guides in ascertaining the paramount intention of the testator, and, with other indicia, it has been held sufficient to show that the words \u2018heirs\u2019 or \u2018heirs of the body\u2019 were not used in their technical sense.\u201d Welch v. Gibson, supra, at 691, 138 S.E. at 28.\nThis rule has been applied in a variety of cases. For instance, in Edwards v. Faulkner, 215 N.C. 586, 2 S.E. 2d 703 (1939), testatrix devised her property \u201cto my nephew W. C. Edwards for his life time, and to his heirs if he dies without heirs, my property goes to my Bro. R. C. Edwards, and after his death to my nephews children H. T. Edwards, and R. L. Edwards.\u201d W. C. Edwards was the son of R. C. Edwards and the brother of R. L. Edwards. The Court held that the rule in Shelley\u2019s Case did not apply because R. C. Edwards would be a potential heir of the first taker. The estate, therefore, would be taken out of the first line of descent and put back in a limited manner. Thus, the case fell within the rule set out in Welch.\nIn Bird v. Gilliam, 121 N.C. 326, 28 S.E. 489 (1897), the devise was \u201cto my daughter, Mary, during her natural life, and give the same to the heirs of her body, but if my daughter, Mary, should not have no lawful heirs of her body, the said land at her death shall go back to my son.\u201d The Court held that the intent of the testator in using the words \u201cheirs of her body\u201d was shown by the phrase \u201cbut if my daughter, Mary, should not have no lawful heirs of her body\u201d to mean issue. Thus the rule in Shelley\u2019s Case did not apply. See also McRorie v. Creswell, 273 N.C. 615, 160 S.E. 2d 681 (1968).\nAgain, in Tynch v. Briggs, 230 N.C. 603, 54 S.E. 2d 918 (1949), the testator devised land to his son \u201cfor the period of his natural life in remainder to his lawful heirs and in the event [my son] should die without lawful heirs then in remainder to my daughter.\u201d Since the daughter would be a lawful heir of the son, the son could not die without heirs in the general sense so long as his sister lived. Thus the Court held that the term \u201cheirs\u201d did not mean heirs in the general sense but rather a specific group of persons and, therefore, the rule in Shelley\u2019s Case did not apply. See also Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15 (1912).\nIn Clayton v. Burch, 239 N.C. 386, 80 S.E. 2d 29 (1954), testator devised land to a grandson, J. W. Clayton, for his lifetime, \u201cthence to his Body ars if he has Eney and if not then [to] . . . my Grand Sound Silus Daynel Clayton if he a living but if J. W. Clayton Shold hav a body hir it shall go to them down to the Tenth Jenerration . . . and if Ether one of my grand-Sons Shold Die [and] my grand Soun Stanley be living and thay Shold not leave a Body heir he Shal hav thair Share.\u201d The Court held that the term \u201cBody heir\u201d was used to describe certain persons and not in the general sense. Again, therefore, the rule in Shelley\u2019s Case was not applied.\nWe conclude that these holdings control the decision in the present case. The testator\u2019s daughter, Mary Vick, would be a lawful heir of the testator\u2019s granddaughter, Jesse Naomi Warren who, therefore, could not die without lawful heirs in the general sense as long as Mary Vick lived. Thus, in the gift over, the estate was taken out of the first line of descent from Jesse Naomi Warren and placed back into the same line in a restricted manner by giving it to some but not to all of those who presumptively would have shared in the estate as the heirs in general of the first taker, Jesse Naomi Warren. It appears, therefore, that R. J. Ricks did not use the term \u201clawful heir or heirs of her body\u201d in the technical sense but rather intended the term to mean the issue of Jesse Naomi Warren. The rule in Shelley\u2019s Case, consequently, does not apply.\nCases holding that the rule applies are distinguishable. For example, in Morrisett v. Stevens, 136 N.C. 160, 48 S.E. 661 (1904), the devise was to testator\u2019s brother for life and then to his heirs, but if he died without heirs of his body, then to Bettie Stevens. There was no indication that Bettie Stevens was related to the brother and, therefore, she would not be his heir. Again, in Benton v. Baucom, supra, the devise was to the testator\u2019s stepdaughter with the gift over to the testator\u2019s three children, who would not have been heirs of the stepdaughter.\nIn Tyson v. Sinclair, 138 N.C. 23, 50 S.E. 450 (1905), testator devised his land to his grandson \u201cduring the term of his natural life, then to the lawful heirs of his body in fee simple; on failing of such lawful heirs of his body, then to his right heirs in fee.\u201d The rule in Shelley\u2019s Case was applied to give the grandson a fee simple. The Court reasoned that the ulterior limitation was not to a restricted group, which would be included in the remainder to the \u201cheirs of his body,\u201d (for example, \u201chis next of kin\u201d) but rather was to a larger group which included the class named in the remainder. The limitation over, therefore, carried the estate as it would have gone by inheritance.\nRay v. Ray, 270 N.C. 715, 155 S.E. 2d 185 (1967), may also be distinguished. The testatrix devised the residue of her estate to her daughter for life, and at her death to the heirs of her body, if any; but if her daughter should predecease the testatrix without leaving heirs of her body, then the residue was to go to certain collateral relatives. The Court applied the rule in Shelley\u2019s Case and, therefore, the daughter took a fee tail estate converted to a fee simple estate by G.S. 41-1. The Court held that the rule of construction enunciated in such cases as Welch v. Gibson, surpa, did not apply because there was no limitation over in the event the daughter should die without heirs after the death of the testatrix. The devise to the collateral relatives was a substitutional gift if the daughter predeceased the testatrix. Since the daughter survived, the devise to the collateral relatives was inoperative, and the rule in Shelley\u2019s Case applied.\nWe conclude that the judge erred when he entered summary judgment in favor of respondents. That judgment is vacated. Petitioners took the land in fee simple, subject only to the life estate of their mother. The case is remanded for proceedings not inconsistent with this determination.\nVacated and remanded.\nJudges Hedrick and Clark concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Duke and Brown, by J. Thomas Brown, Jr., and Donald M. Wright, for petitioner appellants.", "Revelle, Burleson and Lee, by L. Frank Burleson, Jr.; Gillam, Gillam and Smith, by M. B. Gillam, Jr., Sarah Starr Gillam and Lloyd C. Smith, Jr., for respondent appellees." ], "corrections": "", "head_matter": "JOHN JUNIOR WHITE, JAMES DONALD WHITE, VIRGINIA GREEN, LILLIE W. PATE, Petitioners v. MILDRED FUTRELL LACKEY, and MARGARET FUTRELL DeLOATCHE, Respondents\nNo. 786SC267\n(Filed 20 March 1979)\n1. Wills \u00a7 33\u2014 rule in Shelley\u2019s Case\nIn order for the rule in Shelley\u2019s Case to apply, it is generally said that (1) there must be an estate of freehold in the ancestor; (2) the-ancestor must acquire that estate in the same instrument containing the limitation to his heirs; (3) the words \u201cheirs\u201d or \u201cheirs of the body\u201d must be used in the technical sense meaning; an indefinite succession of persons, from generation to generation; (4) the two interests must be either both legal or both equitable; and (5) the limitation to the heirs must be a remainder in fee or in tail.\n2. Wilis \u00a7 33.1\u2014 inapplicability of rule in Shelley\u2019s Case\nWhere testator devised land to his granddaughter \u201cduring her natural life and at her death to the lawful heirs or heirs of her body,\u201d and provided in another item of the will that in the event the granddaughter died leaving no lawful heir or heirs of her body, the land should go to testator\u2019s daughter for life and at her death to her children, the rule in Shelley\u2019s Case did not apply to give the granddaughter a fee tail converted into a fee simple by G.S. 41-1 since the testator\u2019s daughter would be a lawful heir of testator\u2019s granddaughter, who could not die without lawful heirs in the general sense as long as the daughter lived; in the gift over, the estate was taken out of the first line of descent and placed back into the same line in a restricted manner by giving it to some but not all of those who presumptively would have shared in the estate as the heirs in general of the first taker; and it appears, therefore, that the testator did not use the term \u201clawful heirs or heirs of her body\u201d in the technical sense but rather intended the term to mean the issue of the granddaughter.\nAPPEAL by petitioners from Martin (Perry), Judge. Judgment entered 7 November 1977 in Superior Court, NORTHAMPTON County. Heard in the Court of Appeals 11 January 1979.\nPetitioners instituted this action on 26 March 1975 claiming ownership of land devised in the will of R. J. Ricks, probated in 1922 in Northampton County.\nIn Item Two of the will the testator devised the property in question:\n\u201cto my granddaughter, Jesse Naomi Warren, during her natural life and at her death to the lawful heir or heirs of her body.\u201d\nIn Item Four of his will, the testator states:\n\u201cIn the event that my granddaughter Jesse Naomi Warren dies leaving no lawful heir or heirs of her body, then, in that event, I devise the land described in Item Two of this will to my daughter Mary G. Vick during her natural life and at her death to her children.\u201d\nOn 23 June 1931, the granddaughter, Jesse Naomi Warren, and her husband conveyed the property to L. M. Futrell, in fee simple. In his will, L. M. Futrell left the property to his daughters, Mildred Futrell Lackey and Margaret Futrell DeLoatch, the respondents, in fee simple. Oh 29 June 1970, Mildred Futrell Lackey and her husband conveyed their interest in the property to Margaret Futrell DeLoatch and her husband.\nJesse Naomi Warren died on 16 December 1974 and was survived by four children, the petitioners herein, who contend that they took the land under the will of R. J. Ricks, subject only to their mother\u2019s life estate. The facts are not disputed. The trial judge concluded that the rule in Shelley\u2019s Case applied to the devise in question and, therefore, that the respondents were lawfully seized of the property. The court entered summary judgment in favor of respondents, and petitioners appealed.\nDuke and Brown, by J. Thomas Brown, Jr., and Donald M. Wright, for petitioner appellants.\nRevelle, Burleson and Lee, by L. Frank Burleson, Jr.; Gillam, Gillam and Smith, by M. B. Gillam, Jr., Sarah Starr Gillam and Lloyd C. Smith, Jr., for respondent appellees." }, "file_name": "0353-01", "first_page_order": 381, "last_page_order": 388 }