{ "id": 8650507, "name": "W. R. HOWELL and others v. MARY A. KNIGHT", "name_abbreviation": "Howell v. Knight", "decision_date": "1888-02", "docket_number": "", "first_page": "254", "last_page": "259", "citations": [ { "type": "official", "cite": "100 N.C. 254" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "2 Dev. & Bat. Eq., 455", "category": "reporters:state", "reporter": "Dev. & Bat. Eq.", "case_ids": [ 8693425 ], "opinion_index": 0, "case_paths": [ "/nc/22/0455-01" ] }, { "cite": "95 N. C., 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274213 ], "opinion_index": 0, "case_paths": [ "/nc/95/0362-01" ] }, { "cite": "5 Ired. Eq., 400", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2101506 ], "opinion_index": 0, "case_paths": [ "/nc/40/0400-01" ] }, { "cite": "85 N. C., 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276888 ], "opinion_index": 0, "case_paths": [ "/nc/85/0059-01" ] } ], "analysis": { "cardinality": 513, "char_count": 9854, "ocr_confidence": 0.514, "pagerank": { "raw": 1.8446598809737087e-07, "percentile": 0.72265410068309 }, "sha256": "19bf031d3324135f1011b7b41e289e28c92547bc283ff9b95c50ddee68664cca", "simhash": "1:12438800d94ce50d", "word_count": 1773 }, "last_updated": "2023-07-14T18:59:04.640355+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. R. HOWELL and others v. MARY A. KNIGHT." ], "opinions": [ { "text": "Smiti-i, C. J.\nThe controversy is in respect to the proper construction of a clause in the will of James Knight, made in July, 1844, and proved after his death in November, 1847. The facts are stated in a case agreed and submitted under section 567 of The Code. The plaintiffs are the children and, as such, the heirs at law of James W. Knight, the devisee named in the fourth item of the will, the meaning and legal effect of which is in dispute, who died intestate in 1875. The defendant, his widow, claims an estate in fee by virtue of a sale of the interest in the land devised, under execution against her husband, made in his life-time by the Sheriff, to her as purchaser, and his deed of conveyance therefor. It is agreed that if, under the aforesaid item or clause of the will, the devisee, James W. Knight, took an estate for life only, judgment shall be rendered for the plaintiffs, but if an estate in fee vested in him thereby, judgment shall be for defendant.\nThe fourth item is in these words:\n\u201c I lend unto my son James W. Knight all my land after the death of his mother, and if he hath a lawful heir begotten of his body at his death, I give it to said heir or heirs; and if he dies without an heir as aforesaid, I lend it to Virginia Staton, William Ann Staton and Simmons B. D. Sta-ton, and if Virginia Staton hath an heir lawfully begotten of her body at her death, I give her share to said heir or heirs ; and if not, I lend her share to William Ann Staton and Simmons B. D. Staton, and if William Ann Staton hath an heir or heirs at her death lawfully begotten of her body, I give her share of said land to said heir or heirs; but if she dies without heirs as aforesaid, I lend her part to Virginia Staton and Simmons B. D. Staton; and if Simmons B. D. Staton hath an heir or heirs lawfully begotten of his body at his death, I give his share to said heir or heirs, but if he dies without an heir or heirs as aforesaid, I lend his share to Virginia Staton and William Ann Staton; and if all of them die without an heir as aforesaid, then I give said land to the two eldest sons of Lunsford R. Cherry, of said county.\u201d\nThe following is the judgment rendered:\nThis cause coming on to be heard before me at Fall Term, 1887, of Edgecombe Superior Court, upon the foregoing statements of facts submitted as a controversy without action, it is adjudged that plaintiffs recover possession of the land sued for and the costs of this action, from which judgment the defendant prays an appeal to the Supreme Court.\nException by the defendant that the Rule in Shelley\u2019s case applies; that by the will of James Knight the absolute estate in the land sued for passed to James W. Knight.\nFrom this ruling, the subject-matter of exception, and the judgment consequent thereon, as error assigned, the defendant appeals and brings up for determination the principle known as \u201c the Rule in Shelley\u2019s case,\u201d to the facts of the present case, in interpreting the testator\u2019s will. The Rule in Shelley\u2019s case has long been recognized as in force in this State, and even so late as the year 1881, in King v. Utley, 85 N. C., 59, in its application to wills and deeds made previous to the enactment introduced into the Revised Code, ch. 43, \u00a7 5. This act declares, that the limitation in any writing \u201c to the heirs of a living person shall be construed to be to the children of such person,\u201d unless a contrary intention be apparent in the instrument, and this change, in the interpretation of the technical words in common use, corresponding with the evident intention of the person employing them, may have the effect of abolishing the Rule, as so many of the States have already done. Wash. Real Estate, note 5, at page 563, in the construction of such phraseology found in the writings executed since January 1,1856, when that Code went into effect.\nThe will before us is not affected by this statute, as the testator died before that date, and the clause in dispute must be interpreted in the light of antecedent adjudications by which the law in force at the time of its execution is established. The rule, however, is not an inflexible one, for it prevails only where the words \u201c heirs or heirs of the body \u201d of the tenant for life, to whom the estate in remainder is limited, are simply used, while the construction yields to an intent manifested in the contextor gathered from other provisions of the instrument, that persons answering the description should take the inheritance as a gift.\nThus, the superadded words, \u201c equally to be divided between them,\u201d or \u201c share and share alike,\u201d have been held to prevent the application of the rule of construction, since they require a division per capita among the donees of the remainder, while under the law of descent, the heirs take per stirpes and representatively, and, to give the rule operation, in the language of the late Chief Justice, \u201c the same persons will take the same estate, whether they take by de-scentor purchase, in which case they take by descent.\u201d Ward v. Jones, 5 Ired. Eq., 400, and Mills v. Thorne, 95 N. C., 362.\nSo, as the predominant and controlling purpose of the testator must prevail, when ascertained from the general provisions of the will, over particular and apparently inconsistent expressions, to which, unexplained, a technical force is given, we may inquire and find out in what sense such expressions were used, and what the testator meant in using them.\nNow, examining the will according to this test, we think it quite manifest the termsheir,\u201d \u201c heirs,\u201d \u201c lawful heir begotten of his body,\u201d were employed not to designate the estate, but the person to take it, the children of the devisee to whom the immediately preceding life estate is limited; in other words, a designatio personarum. The considerations which support this view will be briefly mentioned :\n1. The testator uses one word when giving a limited or life estate to a donee, and another and different word when giving an absolute estate, of remainder in fee; and this distinction is carefully maintained throughout the entire clause, as well as in subsequent clauses where similar limitations are found. Thus he says: \u201c I lend unto my. son James,\u201d and \u201c if he hath a lawful heir, begotten of his body at his death, I give it to said heir\u201d or \u201cheirs;\u201d, if he die without such, \u201cI lend it to Virginia Staton\u201d and others, and upon similar contingency \u201cI give her share,\u201d &c.; and if she die without such heir, I lend her share to William Ann Staton, &c., and at her death, \u201c I give the share to her heir or heirs,\u201d and so on to the end of the clause. Studiously throughout the will, in the disposition alike of real and personal estate, this phraseology is preserved, the word \u201clend\u201d being used to indicate the nature and extent of the donation, when the estate or property is to be limited, implying a reservation in the donor, as in a strict sense the word means; and when the absolute property is to be parted with, it is given to the ulterior donee. This distinctty marks the differences in the devises and an intent which can only be fulfilled by giving a meaning to the term \u201cheir,\u201d which confines it to a child or children; a sense in which it is generally understood in popular use. Payne v. Sale, 2 Dev. & Bat. Eq., 455; opinion of Gaston, J.\n2. The expression, \u201cif he have a lawful heir, begotten of his body, at his death,\u201d most clearly points to personal offspring, which must be a \u201clawful,\u201d as distinguished from an \u201cillegitimate\u201d child. There can be no such thing as an unlawful heir, for it is by virtue of the law, that one bears that relation to the estate of an intestate, and the absurdity vanishes when the qualification is attached to a child.\n8. The term throughout the will, for it is constantly used, must bear this construction, to give full scope and efficacy to the successive limitations, and unless it is given, the will must utterty fail to carry out the testator\u2019s obvious purposes.\nWith this manifestation of an intent predominating in the will, the rule in Shelley\u2019s case must be subservient, and the rule itself admits an exception, from its operation under such circumstances.\nWe do not subvert a principle which has long been a rule of property in this State, as well as in England, and under which have vested rights we would be unwilling to disturb; and the General Assembly alone can repudiate it, if unjust in its operation, if this has not already been done as to wills or deeds made after an abolishing enactment.\nThere is no error, and the judgment must be affirmed.\nNo error. \u2022 Affirmed.", "type": "majority", "author": "Smiti-i, C. J." } ], "attorneys": [ "Mr. John Devereux, Jr., (Messrs. Gilliam & Son filed a ibrief,) for the plaintiffs.", "No counsel for the defendant." ], "corrections": "", "head_matter": "W. R. HOWELL and others v. MARY A. KNIGHT.\nRule in Shelley\u2019s Case \u2014 \u00a7 1329, The Code \u2014 Construction of Will.\n.1. Ch. 43, \u00a7 5, Rev. Code \u2014 \u00a7 1329, The Gode \u2014 may have the effect of abolishing the rule in Shelley\u2019s case, in the contraction of instruments executed since January 1st, 1856.\n2. The rule in Shelley\u2019s case prevails only where the words \u201cheirs, or heirs of the body\u201d of the tenant for life, to whom the estate in remainder is limited, are simply used; but it yields to an intention manifested in the context, or gathered from other provisions of the instrument.\n3. A devise, as follows ; \u201c I lend to A., and if he hath a lawful heir begotten of his body at his death, I give it to said heir or heirs; and if he dies without an heir as aforesaid, I lend it to B.,\u201d rejieat-ing a similar gift to the heir or heirs of B., if he should have such living at his death, creates an estate for life only in A., and the rule in Shelley\u2019s case does not apply.\nCivil ACTION \u2014 Ejectment\u2014tried before Avery, J., at Fall 'Term, 1887, of Edgecoiibe Superior Court.\nJudgment was rendered for the plaintiffs; defendant appealed.\nThe facts appear in the opinion.\nMr. John Devereux, Jr., (Messrs. Gilliam & Son filed a ibrief,) for the plaintiffs.\nNo counsel for the defendant." }, "file_name": "0254-01", "first_page_order": 278, "last_page_order": 283 }