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    "judges": [
      "Chief Judge MORRIS and Judge VAUGHN concur."
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    "parties": [
      "BEULAH STONE JONES and husband, ROLAND JONES, and EULA STONE HAYES v. DAVID S. STONE and wife, LUCILLE M. STONE"
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      {
        "text": "BECTON, Judge.\nI\nRespondent first contends that the trial court erred in refusing to grant his motion to dismiss for failure to prosecute pursuant to G.S. 1A-1, Rule 41(b). We disagree.\nUnder the North Carolina Rules of Civil Procedure, Rule 41(b), a petitioner\u2019s claim can be dismissed with prejudice if the petitioner fails to prosecute the action. Indeed, courts have inherent power to dismiss stale actions on their own motion. Link v. Wabash Railroad Company, 370 U.S. 626, 8 L.Ed. 2d 734, 82 S.Ct. 1386, reh. denied, 371 U.S. 873, 9 L.Ed. 2d 112, 83 S.Ct. 115 (1962). However, a \u201cmere lapse of time does not justify dismissal if the plaintiff [petitioner] has not been lacking in diligence.\u201d Green v. Eure, 18 N.C. App. 671, 672, 197 S.E. 2d 599, 600 (1973). Courts are, and should be, primarily concerned with trial of cases on their merits. \u201cDismissal for failure to prosecute is proper only [when] the plaintiff manifests an intention to thwart the progress of the action to its conclusion, or by some delaying tactic plaintiff fails to progress the action toward its conclusion.\u201d Id. at 672, 197 S.E. 2d at 601.\nIn this case, the affidavit of the petitioner Beulah Jones discloses that she believed her claim, and the claim of her sister, had been lost based on information supplied to her by her original attorney. It was not until Ms. Jones heard of a similar action filed in the fall of 1978 that she had reason to believe that the information supplied to her by her original attorney was incorrect. From that point forward, petitioners undertook diligent efforts to investigate their claim, hire new counsel, and proceed with a hearing of their claim on the merits. The record does not suggest that petitioners deliberately proceeded in dilatory fashion. It was after petitioners filed a motion for substitution of counsel and after they requested that the case be set for trial that respondent came forward with the motion to dismiss for failure to prosecute.\nDismissal under Rule 41(b) is within the discretion of the trial court. The trial court heard the testimony of the original attorney and reviewed the affidavit of Ms. Jones, and upon that evidence it failed to find that petitioners were delaying this action or otherwise attempting to thwart its progress toward trial. The decision of the trial court, denying respondent\u2019s motion, should therefore not be disturbed.\nII\nRespondent next contends that the Rule in Shelley\u2019s case gave his father, Samuel Temus Stone, a fee simple estate and that he, David Stone, owns all of the land by virtue of his father\u2019s conveyance to him.\nThis year marks the 400th anniversary of the formal pronouncement of the Rule in Shelley\u2019s case (Rule). The Rule is a vestige of feudal law and takes its name from an old English case, Wolfe v. Shelley, 1 Co.Rep. 93(b), 76th Eng. Rep. 206 (CB 1581). In North Carolina, the Rule is most often stated as follows:\nWhen 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.\nJones v. Whichard, 163 N.C. 241, 243, 79 S.E. 503, 504-05 (1913); White v. Lackey, 40 N.C. App. 353, 355, 253 S.E. 2d 13, 15, disc. rev. denied, 297 N.C. 457, 256 S.E. 2d 810 (1979). A shorter, and perhaps easier to grasp, explanation of the Rule is set forth in Martin v. Knowles, 195 N.C. 427, 142 S.E. 313 (1928):\nIf an estate of freehold be limited to A, with remainder to his heirs, general or special, the remainder, although importing an independent gift to the heirs, as original takers, shall confer the inheritance on A, the ancestor.\nId. at 429, 142 S.E. at 313.\nAlthough the original objective of the Rule became outdated when feudal tenures were abolished in the seventeenth century, the Rule enjoyed prominence until the twentieth century. The Rule was abolished in England in 1925; it has never been repealed in North Carolina, however. Indeed, one year after the Rule was abolished in England, the North Carolina Supreme Court said:\nToday, the rule serves quite a different, but no less valuable, purpose, in that it prevents the tying up of real estate during the life of the first taker, facilitates its alienation a generation earlier, and at the same time, subjects it to the payment of the debts of the ancestor.\nBenton v. Baucom, 192 N.C. 630, 632, 135 S.E. 629, 630 (1926).\nIn order for the Rule to apply, all of the following factors must exist:\n(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 \u2018heirs\u2019 or \u2018heirs of the body\u2019 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.\nWhite v. Lackey, 40 N.C. App. at 356, 253 S.E. 2d at 15-16. See also Benton v. Baucom; Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501 (1922).\nWhen all of the required elements are present, the Rule applies regardless of the intent of the testator, the Rule being \u201cone of law and not one of construction.\u201d 184 N.C. at 16, 113 S.E. at 502.\nIn applying the Rule, courts have not always been bound by the words \u201cto A for life, remainder to A\u2019s heirs\u201d or similar words. Indeed, much of the litigation under the Rule concerns the courts\u2019 attempts to ascertain the paramount intent of testators who use the word \u201cheirs.\u201d The Rule at times\noverrides even the expressed intention of the grantor, or that of the testator, as the case may be. But when this is said, it should be understood as meaning that only the particular intent is sacrificed to the general or paramount intent. It is not the estate which the ancestor takes that is to be considered so much as it is the estate intended to be given to the heirs. . . . \u2018The 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. Not until this has been ascertained by first viewing the instrument from its four corners (Triplett v. Williams, 149 N.C., 394), and determining whether the heirs take as descendants or purchasers, can it be known in a given case whether the facts presented call for an application of the rule. . . . The meaning or sense in which the words \u2018heirs\u2019 or \u2018heirs of the body\u2019 are employed, whether technical or other, is denominated the general or paramount intent, and this is to be the controlling factor. (Emphasis added.)\nId. at 16-17, 113 S.E. at 502.\nIn an old Kentucky case, Prescott v. Prescott, 49 Ky. (10 B. Mon.) 56, 58 (1849), the court said:\nIt is true, the words \u2018heirs of the body,\u2019 are appropriate words of limitation . . . [b]ut it is also well settled by numerous decisions, that not only heirs of the body, but the more general word \u2018heirs,\u2019 or the more specific terms \u2018heirs male, or heirs female of the body,\u2019 or of \u2018two bodies,\u2019 may be used and operate as words of purchase. It is a question of intention whether these words are used to denote the whole line of heirs of the sort described to take in succession as such heirs, or to denote only a particular person, or a class of persons who are to come under that description at the time. When used in the former sense, they are words of limitation, defining or limiting the previous estate to which they apply. When used in the latter sense, they operate merely as designatio personoe, or personarum, and are held to be words of purchase, giving a new estate to the persons designated.\nWe must determine in this case if the testator, Neil A. Stone, intended the words \u201cheirs at law\u201d to mean the indefinite succession of persons from generation to generation taking as if by intestacy. If he did, the Rule applies because those words would be \u201cwords of limitation\u201d as contra-distinguished from \u201cwords of purchase.\u201d Webster, supra, at 11. If, however, Neil A. Stone used the words \u201cheirs at law\u201d to designate certain individuals who are only a part, and not all, of the heirs of the first taker or used the words to describe heirs of the first taker at a particular time, then the Rule does not apply. Neil A. Stone would not have been using the words \u201cheirs at law\u201d in the technical sense, and therefore the heirs would take a per capita remainder interest in the property by \u201cpurchase\u201d as tenants in common. Welch v. Gibson, 193 N.C. 684, 138 S.E. 25 (1927); Gilmore v. Sellars, 145 N.C. 283, 59 S.E. 73 (1907); Faison v. Odum, 144 N.C. 107, 56 S.E. 793 (1907); Jenkins v. Jenkins, 96 N.C. 254, 2 S.E. 522 (1887); Mills v. Thorne, 95 N.C. 362 (1886); White v. Lackey.\nIn determining the preliminary question \u2014Neil A. Stone\u2019s intent\u2014we are guided by \u201cthe ordinary principles of construction [in will cases] without regard to the [R]ule,\u201d Hampton v. Griggs, 184 N.C. at 16, 113 S.E. at 502. It has long been the rule that the intent of a testator is to be ascertained, if possible, based on a consideration of his Will from its four corners; that to effectuate the intention of the testator, the court may disregard or supply punctuation, as well as transpose words, phrases or clauses; and that words, phrases or clauses will be supplied in the construction of a Will when the sense of the phrase or clause in question, as collected from the context, manifestly requires. Elmore v. Austin, 232 N.C. 13, 59 S.E. 2d 205 (1950); House v. House, 231 N.C. 218, 56 S.E. 2d 695 (1949); Cannon v. Cannon, 225 N.C. 611, 36 S.E. 2d 17 (1945); Williams v. Rand, 223 N.C. 734, 28 S.E. 2d 247 (1943). As stated in the case of Coppedge v. Coppedge, 234 N.C. 173, 66 S.E. 2d 777 (1951):\n[i]n construing a will, the entire instrument should be considered; clauses apparently repugnant should be reconciled and effect given where possible to every clause or phrase and to every word. \u2018Every part of a will is to be considered in its construction, and no words ought to be rejected if any meaning can possibly be put upon them. Every string should give its sound,\u2019 [citations omitted]. But, where provisions are inconsistent, it is a general rule in the interpretation of wills, to recognize the general prevailing purpose of the testator and to subordinate the inconsistent provisions found in it. Snow v. Boylston, 185 N.C. 321, 117 S.E. 14 [1923]; Tucker v. Moye, 115 N.C. 71, 20 S.E. 186 [1894]; . . .\n234 N.C. at 176, 66 S.E. 2d at 779.\nHaving discussed the required elements for application of the Rule; the technical meaning of the words \u201cheirs at law\u201d; and the standards established by our courts in construing a Will, we now apply these rules to Neil A. Stone\u2019s use of the words \u201cheirs at law.\u201d\nIn Item Five of his Will, Neil A. Stone gave a life estate to his son, Samuel Temus Stone, and provided that the remainder was \u201cto be divided among [Samuel Temus Stone\u2019s] heirs at law.\u201d We believe the superadded words \u2014\u201cto be divided among\u201d \u2014are sufficient to take the devise out from under the Rule.\nProfessor Webster in his article on the Rule states it differently:\nTo evade the possibility of running afoul of the Rule in Shelley\u2019s Case, all that is needed is some slight contextual language in the dispositive instrument that will indicate to the court that the words \u2018heirs\u2019 or \u2018heirs of the body\u2019 mean less than the whole body of heirs who would take in indefinite succession.\nWebster, supra, at 13.\nThe court and Professor Webster find support in Welch v. Gibson, 193 N.C. 684, 138 S.E. 25 (1927), in which our Supreme Court distinguished the English rule from the North Carolina rule with regard to the superadded words \u201cequally to be divided\u201d or \u201cshare and share alike\u201d:\nIt has been held in England, ever since the leading case of Wright v. Jesson, in the House of Lords, 2 Bligh., 2, which overruled Doe v. Wright, in the King\u2019s Bench, 5 M. and S., 95, that the words \u2018equally to be divided,\u2019 or \u2018share and share alike,\u2019 superadded to the limitation to the heirs, or to heirs of the body, do not prevent the application of the rule, and such was declared to be the law of this State in Ross v. Toms, 15 N.C., 376, a case decided prior to the Act of 1784, now C.S., 1734. But in Ward v. Jones, 40 N.C., 400, decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362, Gilmore v. Sellars, 145 N.C., 283, and Haar v. Schloss, 169 N.C., 228, it was held \u201cthat in all devises of land, made since that time (1784), the words \u2018to be equally divided\u2019 prevent the application of the rule in Shelley\u2019s case, and that the first taker has only an estate for life.\u201d\n193 N.C. at 689, 138 S.E. at 27. This premise in Welch v. Gibson is so well established that respondent concedes had the additional word \u201cequally\u201d been used in Item Five of Neil A. Stone\u2019s Will the Rule would not apply. Our reading of the North Carolina cases suggests that the words \u201cto be divided among,\u201d even without the word \u201cequally,\u201d defeat the application of the Rule. Indeed, in Mills v. Thorne, 95 N.C. 362 (1886), the North Carolina Supreme Court, citing as authority, H. Theobald, A Concise Treatise on the Law of Wills, (2d ed. 1881), said: \u201cIt is laid down that words of division or distribution, such as 'to be divided,' or 'equally,\u2019 or 'between,' or 'amongst,' or 'share,' or similar words, make a tenancy in common.\u201d Mills v. Thorne, 95 N.C. at 365. When heirs take as tenants in common rather than as heirs in the line of succession, the Rule does not apply.\nIn addition to the superadded words which constitute \u201cslight contextual language in the dispositive instrument\u201d indicating that the words \u201cheirs at law\u201d were not used in a technical sense, Neil A. Stone\u2019s entire scheme of distribution suggests that the words \u201cheirs at law\u201d were merely descriptio presonarum of those persons who were to receive a remainder interest in the property after the death of Samuel Temus Stone. The entire Will of Neil A. Stone incorporated a per capita division and distribution of his estate. After the death of Nannie Catharine Stone, each of the children of Neil A. Stone was given a lifetime interest in one-tenth of his real property. Upon the death of each child, their one-tenth interest was to be divided among their heirs at law. Neil A. Stone used the word \u201cequally\u201d in every item of his Will except Item Five. Thus respondent concedes that the words \u201cheirs at law\u201d as used by Neil A. Stone in the Third, Sixth, Seventh, Eighth, Ninth, Tenth and Twelfth Items of his Will were not intended by the Testator to be used in their technical sense as is required for application of the Rule. Respondent relies heavily upon the absence of the word \u201cequally\u201d in the Fifth Item of the Will to support his position. In doing so, respondent completely misses the point which was established by Mills v. Thorne, and Welch v. Gibson. It is not the presence or absence of one particular word in one particular paragraph of the Will which determines whether the Rule will apply, but rather it is the intent of the testator in his use of the word \u201cheirs,\u201d gleaned from the entire dispositive instrument and considered in the light of the superadded words which are present to disclose that intent.\nThe trial court\u2019s finding that the word \u201cheirs\u201d should be interpreted consistently throughout the Will as words merely descriptio personarum, and that therefore the Rule has no application, is entirely proper under the decisions of our court in Williams v. Rand; Cannon v. Cannon; Elmore v. Austin; House v. House; and Coppedge v. Coppedge. We hold that the superadded words \u201cto be divided among\u201d are sufficient to prevent the operation of the Rule, and are consistent with Neil A. Stone\u2019s design to divide his property among his children\u2019s children not in accordance with the laws of intestate succession, but rather as tenants in common and members of the same class. Therefore, the judgment appealed from is\nAffirmed.\nChief Judge MORRIS and Judge VAUGHN concur.\n. The principle, however, was part of the common law of England long before 1581. \u201cThe principle known as the Rule in Shelley\u2019s Case had its origin as early as the reign of Edward II, in 1324.\u201d Webster, A Relic North Carolina Can Do Without\u2014The Rule in Shelley\u2019s Case, 45 N.C. L.Rev. 3, 4 n. 4 (1966).",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Love & Wicker, P.A., by Jimmy L. Love, for respondent appellants.",
      "Randall, Yaeger, Woodson, Jervis & Stout, by Robert B. Jer-vis, and McCain and Moore, by Grover C. McCain, Jr., for petitioner appellees."
    ],
    "corrections": "",
    "head_matter": "BEULAH STONE JONES and husband, ROLAND JONES, and EULA STONE HAYES v. DAVID S. STONE and wife, LUCILLE M. STONE\nNo. 8011SC620\n(Filed 16 June 1981)\n1. Rules of Civil Procedure \u00a7 41\u2014 refusal to dismiss action for failure to prosecute\nThe trial court did not abuse its discretion in denying respondent\u2019s motion to dismiss petitioners\u2019 partition proceeding filed in 1970 for failure to prosecute where petitioners believed that their claim had been lost on the basis of information supplied to them by their original attorney; it was not until 1978 that petitioners found that such information was incorrect; and from that point forward, petitioners undertook diligent efforts to investigate their claim, hire new counsel, and proceed with a hearing of their claim on the merits.\n2. Wills \u00a7 33.1\u2014 inapplicability of Rule in Shelley\u2019s case\nWhere testator devised a life estate in realty to his son with the remainder \u201cto be divided among [the son\u2019s] heirs at law,\u201d the Rule in Shelley\u2019s case did not apply to give the son fee simple title to the realty since the words \u201cto be divided among\u201d showed testator\u2019s intention to divide his property among his children\u2019s children not in accordance with the laws of intestate succession but rather as tenants in common and members of the same class.\nAppeal by respondents from Britt, Judge. Judgment entered 23 April 1980 in Superior Court, Lee County. Heard in the Court of Appeals 29 January 1981.\nIn a special proceeding to partition land, filed 3 July 1970, petitioners, Beulah Stone Jones and Eula Stone Hayes, allege that they are tenants in common with the respondent, David S. Stone, of approximately 19.28 acres in Lee County. The property in question is part of a 145-acre tract owned by Neil A. Stone at the time of his death on 15 June 1937. Beulah Jones and Eula Hayes are the sisters of David Stone, and their claim to be tenants in common with David Stone arises under the Last Will and Testament of their grandfather, Neil A. Stone.\nIn Item Two of his Will, Neil A. Stone devised a life estate in his property to his wife, Nannie Catharine Stone. In Item Five of his Will, Neil A. Stone provided as follows:\nI give, devise and bequeath to my son Samuel Temus Stone, to take effect after the death of my said wife, one-tenth in value, of all my real property to have and to hold the same during his natural life and after his death, the same to be divided among his heirs at law. (Emphasis added.)\nIn Items Three, Six, Seven, Eight, Nine, Ten and Twelve of his Will, Neil A. Stone used the same language he used in Item Five to devise a one-tenth interest in his property to seven of his nine other children, except he inserted the additional word \u201cequally.\u201d Consequently, the remainder provision in Items Six, Seven, Eight, Nine, Ten and Twelve reads \u201cand after [that child\u2019s] death the same to be equally divided among his [her] heirs at law.\u201d\nIn July 1949, after the death of Nannie Catharine Stone, a special proceeding seeking an actual division of Neil A. Stone\u2019s real property was instituted before the Clerk of Lee County Superior Court. As a result of this special proceeding, Neil A. Stone\u2019s land was divided into ten separate tracts. The land allotted to Samuel Temus Stone in the partition proceeding of July 1949 consisted of 19.28 acres.\nSamuel Temus Stone died on 15 May 1970 leaving, as his sole heirs, his daughters, the petitioners herein, and his son, the respondent herein. To the petition alleging that Beulah Jones and Eula Hayes are equal tenants in common with him, David Stone filed an Answer asserting that under the Last Will and Testament of his father, Samuel Temus Stone, he was devised a fee simple interest in said land. David Stone contends that his father, prior to his death in 1970, was vested with fee simple title to said land by virtue of the Rule in Shelley\u2019s case.\nThe petition to partition was filed by petitioners\u2019 original attorney on 3 July 1970. On 1 June 1979 petitioners filed a Notice of Substitution of Counsel. On 11 June 1979 the respondent filed a motion to dismiss for failure to prosecute pursuant to Rule 41(b) of the Rules of Civil Procedure. The motion was denied at the 28 January 1980 civil session of Lee County Superior Court. This case was heard by the court without a jury at the 21 April 1980 civil session of Lee County Superior Court. From the court order concluding that Beulah Jones, Eula Hayes and David Stone were \u201cequal tenants in common of said 19.28 acre tract of real property, each of said persons owning one-third undivided interest in and to said real property\u201d and further finding that petitioners were entitled to a partition sale as prayed for in their petition, respondent appealed.\nLove & Wicker, P.A., by Jimmy L. Love, for respondent appellants.\nRandall, Yaeger, Woodson, Jervis & Stout, by Robert B. Jer-vis, and McCain and Moore, by Grover C. McCain, Jr., for petitioner appellees.\n. Roland Jones, the husband of Beulah Stone Jones, is listed as a petitioner in this proceeding; Lucille M. Stone, the wife of David S. Stone, is listed as a respondent in this proceeding.\n. Neil A. Stone also devised a life estate to his two other children in Items Four and Eleven of his Will, but the remainder in Item Four was to be equally divided among Neil A. Stone\u2019s other children, and the remainder in Item Eleven was to go to the named son who took care of the infirmed life tenant."
  },
  "file_name": "0502-01",
  "first_page_order": 530,
  "last_page_order": 540
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