{ "id": 11271820, "name": "B. A. PRICE et al. v. G. O. GRIFFIN and wife", "name_abbreviation": "Price v. Griffin", "decision_date": "1909-04-21", "docket_number": "", "first_page": "523", "last_page": "528", "citations": [ { "type": "official", "cite": "150 N.C. 523" } ], "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": "132 N. C., 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657775 ], "opinion_index": -1, "case_paths": [ "/nc/132/0115-01" ] }, { "cite": "120 N. C., 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656795 ], "opinion_index": 0, "case_paths": [ "/nc/120/0170-01" ] }, { "cite": "117 N. C., 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653538 ], "opinion_index": 0, "case_paths": [ "/nc/117/0497-01" ] }, { "cite": "101 N. C., 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650042 ], "opinion_index": 0, "case_paths": [ "/nc/101/0162-01" ] }, { "cite": "147 N. C., 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269968 ], "opinion_index": 0, "case_paths": [ "/nc/147/0368-01" ] }, { "cite": "141 N. C., 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253552 ], "opinion_index": 0, "case_paths": [ "/nc/141/0507-01" ] }, { "cite": "11 N. C., 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682230 ], "opinion_index": 0, "case_paths": [ "/nc/11/0393-01" ] }, { "cite": "166 Pa. St., 445", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 864208 ], "opinion_index": 0, "case_paths": [ "/pa/166/0445-01" ] }, { "cite": "58 Ark., 306", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "41 Pa. St., 288", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 480073 ], "opinion_index": 0, "case_paths": [ "/pa/41/0288-01" ] }, { "cite": "136 N. C., 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660871 ], "opinion_index": 0, "case_paths": [ "/nc/136/0460-01" ] }, { "cite": "132 N. C., 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657775 ], "opinion_index": 0, "case_paths": [ "/nc/132/0115-01" ] } ], "analysis": { "cardinality": 638, "char_count": 12607, "ocr_confidence": 0.464, "pagerank": { "raw": 3.443874814862636e-07, "percentile": 0.8798036101718671 }, "sha256": "1c5bea11a878f827d088291bc693f7725cc5bd754dfa77c1c8ebfbb16352e1e2", "simhash": "1:a285cf311e044f7c", "word_count": 2294 }, "last_updated": "2023-07-14T18:55:20.077008+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "B. A. PRICE et al. v. G. O. GRIFFIN and wife." ], "opinions": [ { "text": "Walker, J.\nTbis is an action for tbe partition of land. In March, 1819, Jesse Price, Sr., wbo was then tbe owner of tbe land in controversy, conveyed tbe same by deed to bis son, Jobn 0. Price, during tbe term of bis lifetime, and at bis death to bis surviving heirs, reserving to Jesse Price, Sr., tbe grantor, an estate for life in tbe land. Jesse Price, Sr., died in 1879, and John C. Price, on 15 January, 1883, conveyed tbe land by deed to W. P. Price in fee simple. John C. Price died on 6 April, 1906, leaving as bis beirs four children, B. A. Price, E. H. Price, A. B. Price and Bettie Pearsall, who are the plaintiffs, and W. P. Price, Lewis H. Price, John T. Price and C. D. Price. The defendant G. 0. Griffin has acquired the\u00bb interest of ~W. P. Price and C. D. Price by deeds duly executed to him in 1884, before this proceeding ivas commenced. If the deed from Jesse Price, Sr., to John 0. Price conveyed a fee-simple estate to the latter, the plaintiffs are not entitled to recover; so that the only question in the case is whether it conveyed a fee or only \u00e1 life estate, with remainder, to his children surviving him. The difficulty presented in the case arises from the use of the word \u201csurviving,\u201d prefixed to the' word \u201cheirs,\u201d but we do not think this is sufficient to render inapplicable the rule in Shelley's case to this limitation. It is said that as one of the principal reasons for establishing this rule was to prevent the abeyance or suspension of the inheritance, it only applied to those limitations in which the word \u201cheirs\u201d (or some equivalent word of inheritance) is used,.on account of the maxim, nemo est hceres viventis. As, under this maxim, no one can be heir to a living person, the word \u201cheirs\u201d must necessarily refer to those who survive the ancestor, and the word \u201csurviving,\u201d therefore, is mere surplusage, just as we have held that the word \u201clawful,\u201d in a limitation to the \u201clawful heirs\u201d of a person, has no significance and does not restrict the ordinary meaning of the word \u201cheirs.\u201d Wool v. Fleetwood, 136 N. C., 460. In Caswell\u2019s appeal, 41 Pa. St., 288, Judge Strong (afterwards a Justice of the Supreme Court of the United States), for the Court, said: \u201cIt is said there could be no other heirs than such as were living at the death of the ancestor; that the words Then living\u2019 would be superfluous, unless the testator intended children by 'heirs/ and that in order to give \u00bfleaning to those words the technical words of limitation must give way and be treated as only a description of persons. \"We are not convinced by the argument. Let it be admitted that the words 'then living\u2019 are strictly of no legal meaning, when applied to heirs. This is no sufficient reason for holding that the testator, in the use of technical words of limitation, intended to depart from their ordinary legal meaning. It is not so easy to overcome the presumption. The words \u2018heirs\u2019 and \u2018beirs of tbe body\u2019 will retain tbeir significance, though the effort be to make unmeaning other words in the will not technical, and even though there may be inconsistent expressions. If the words are repugnant, why should the word \u2018heirs\u2019 give way, rather than the words \u2018then living\u2019? In the will of an unlettered man, however, they can hardly be called repugnant. Lawyers may understand that there are no heirs of a living person, or that the phrase \u2018living heirs\u2019 is a superfluous addition to a gift to heirs, but laymen may not.\u201d He adds that the books are full of cases in which it has been held that superfluous expressions in a will do not suffice to reduce the word \u201cheirs\u201d or \u201cheirs of the body\u201d into words of purchase, so as to make them the root of a new inheritance or the stock of a new descent, or descriptio personarum: Chancellor Kent (4 Kent\u2019s Comm., 13 Ed., 226) says that Mr. Hargrave, in his observations on the rule, is for giving it a most absolute and peremptory obligation. \u201cHe considered that the rule was beyond the control of intention when a fit case for its application existed. It was a conclusion of law of irresistible efficacy, when the testator did not use the words \u2018heirs\u2019 or \u2018heirs of the body,\u2019 in a special or restrictive sense, for any particular person or persons who should be the heir of the tenant for life at .his death, and in that instance inaptly denominated \u2018heir,\u2019 and when he did not intend to break in upon and disturb the line of descent from the ancestor, but used the word \u2018heirs\u2019 as a nomen collecti-vum for the whole line of inheritable blood. It is not, nor ought to be, in the .power of a grantor or testator to prescribe a different .qualification, to heirs from what the law prescribes, when they are to take in their character of heirs; and the rule, in its wisdom and policy, did not intend to leave it to the' parties to decide what should be a descent and what should be a purchase.\u201d The heirs of a man are his descendants who survive him and are capable of inheriting at the time of his death. At no other time can it be ascertained who his heirs will be. They may be his lineal descendants or those only who are related to him collaterally. Hardage v. Strooks, 58 Ark., 306. In the case of Watts v. Clardy, 2 Fla., at pp. 389, 390, where the limitation was very much like the one in this case, it is said: \u201cThe term 'surviving heirs\u2019 is one of unusual occurrence in the books, for whilst we have 'survivors,\u2019 \u2018surviving children,\u2019 \u2018sons,\u2019 \u2018issue\u2019 and \u2018daughters,\u2019 there is in the books no such word attached to heirs, as far as we have been able to discover; and we are inclined to the opinion that, so connected, it is without meaning, neither enlarging nor contracting the estate. The heirs of Mrs. Clardy, from necessity, are those who survive her at-her death; they could 'not have preceded her. Nemo est hwres viveniis. There is no heir until the death of the ancestor. The fair import of the clause, then, would seem to be that the estate is to go to the heirs of her body at her decease. If this view be correct, the case is freed from difficulty, and the deed is a naked grant to the heirs of the body. Obviously those who take as surviving heirs claim as heirs to the mother at her.death, and, taking as heirs, they take by\u2019 descent. According to our view, the property would descend to the whole class of heirs of Mrs. Clardy, and they would become entitled to the estate in the same manner and. to the same extent and with the same descendible qualities as if the grant had been simply to her and her heirs.\u201d The same conclusion was reached by the Court in Heister v. Yerger, 166 Pa. St., 445, in which.the Court said that \u201cThere is no distinction between the expressions \u2018his then surviving heirs\u2019 ahd \u2018heirs then living at the time of their deaths.\u2019 In each case the word \u2018heirs\u2019 refers to those who, under the intestate laws, would inherit from the- first taker qua heirs.\u201d In May v. Lewis, 132 N. C., 115, this Court construed the following devise: \u201cI loan unto nrf son Benjamin May my entire interest in the tract \u2022of land (describing it), to be his during \u2019his natural life, and at his death I give said land to his heirs, if any, to be theirs in fee simple, forever; and if he should die without heirs, said land to revert to his next of kin.\u201d \"We held that the rule in Shelley's case did not apply, because of the closing words, which changed the ordinary course of descent; but it was said that \u201cif the devisor had concluded the limitation with the words \u201cto his heirs,- if any, to be theirs in fee simple, forever,\u201d the rule would have applied and given to Benjamin May a fee simple. In other words, that the expression, \u201cif any,\u201d would not in such a case prevent the application of the rule. By the words \u201cif any\u201d tbe devisor evidently meant if any living or surviving, or, to state it differently, to tbe \u201cliving\u201d or \u201csurviving\u201d heirs,- \u201cif any.\u201d Tbe Court further said in that case that tbe person designated by the technical word \u201cheir\u201d is be on whom tbe law casts an inheritance at tbe time of tbe ancestor\u2019s death, citing Croom v. Herring, 11 N. C., 393, where Henderson, J., so defines tbe word. The limitation in this ease cannot be differentiated from one to a person and, at bis death, to bis beirs, for bis beirs must be ascertained at that time. They are those upon whom, at bis death, tbe inheritance or descent is cast. In tbe case of Richards v. Bergavenny, 2 Vernon, 324, tbe estate was limited to tbe Rady Bergavenny and such beirs of her body as should be living at her death, and, in default of such' heirs of her body, tbe remainder over. Tbe Court held^ that tbe Lady Bergavenny took an estate in fee tail, and did not attach any importance to tbe words \u201cliving at her death\u201d as having tbe effect to restrict tbe words \u201cbeirs of her body\u201d so as to cut down her estate to one for life. This case has often been cited as an authority in support of tbe position that such words cannot be allowed to reduce tbe quantity of this estate or to free tbe limitation from tbe operation of tbe rule in Shelley\u2019s case. We ar\u00e9 authorized to examine the context of tbe deed in order to ascertain tbe true meaning of words which we are required to construe, when they are ambiguous. Gudger v. White, 141 N. C., 507; Railroad v. Railroad, 147 N. C., 368. In this way we may determine whether tbe words \u201csurviving beirs\u201d were used as desigantio personarum, or as descriptive of those persons upon whom tbe law easts tbe inheritance, under tbe canons of descent, p,s beirs of John C. Price and not as purchasers from Jesse Price, or as those who take under tbe law and not under the deed. Looking at tbe instrument in its entirety, we find that, in addition to tbe words we have already-taken from tbe deed, tbe clause of warranty contains a covenant for quiet enjoyment, which runs, not to John C. Price for life, and then to bis \u201csurviving beirs,\u201d but \u201cto him and to bis beirs and assigns, forever.\u201d This may be slight evidence of what tbe grantor meant when be used tbe words \u201csurviving beirs\u201d; and while this may be so, it is not to be disregarded, but may be considered as shedding some light upon tbe question in controversy. Tbe form of tbe covenant is. in perfect harmony with tbe interpretation we have given to tbe words of tbe limitation, \u201cto him during tbe- term of bis lifetime,\u201d and, at bis decease, \u201cto tbe surviving heirs of tbe said John C. Price.\u201d It evinces a purpose to give him tbe fee, and not merely a life estate, by. tbe use of proper words of inheritance which are sufficient for tbe application of tbe rule of law laid down in Shelley\u2019s case.\nWe believe our conclusion to be supported by recent decisions of this Court as to tbe application of tbe rule in Shelley\u2019s case. Leathers v. Gray, 101 N. C., 162; Nichols v. Gladden, 117 N. C., 497; Chamblee v. Broughton, 120 N. C., 170.\nAs John 0. Price acquired by tbe deed from bis father a fee-simple estate, be conveyed the same estate to tbe defendant G. 0. Griffin by tbe deeds executed in 1884, and the plaintiffs consequently have no interest in tbe land as tenants in common with tbe defendants. Tbe ruling of tbe court was therefore correct.\nNo Error.", "type": "majority", "author": "Walker, J." } ], "attorneys": [ "M. T. Dickerson and H. L. Stevens for plaintiffs.", "Isaac F. Dortch, F. A. Daniels and Aycock & Winston for defendants." ], "corrections": "", "head_matter": "B. A. PRICE et al. v. G. O. GRIFFIN and wife.\n(Filed 21 April, 1909.)\n1. Deeds and Conveyances \u2014 interpretation\u2014Words and Phrases\u2014 \u201cSurviving Heirs\u201d \u2014 Surplusage.\nTlie word \u201csurviving,\u201d in a conveyance of land \u201cto P. for life, \u2022and at his death to his surviving heirs,\u201d is surplusage, and cannot affect the legal interpretation of the words employed.\n2. Same \u2014 Rule in Shelley\u2019s Case.\nA conveyance' of an estate \u201cto P. for life, and at his death to his surviving heirs,\u201d conveys the fee simple to the grantee, under the'rule in Shelley's case. (May v. Lewis, 132 N. C., 115, cited, approved and distinguished.)\n3. Deeds and Conveyances \u2014 Interpretation\u2014Context\u2014Estates\u2014 \u201cLiving Heirs\u201d \u2014 Surplusage.\nIn construing the meaning of words contained in a deed the court may examine the context of the deed; and for the purpose of. shedding light upon the value or extent of the estate described in the conveyance clause \u2014 in this case, \u201cto P. for. life and at his death to the surviving heirs\u201d \u2014 the warranty and covenant clause may be resorted to, when the language is applicable, as some evidence that the word \u201cliving,\u201d thus used,, should be treated as surplusage.\nActioN tried before Neal, J., upon, demurrer to complaint, at November Term, 1908, of WaKE. . .\nDemurrer sustained. Plaintiff appealed.\nTbe pertinent facts are stated in tbe opinion.\nM. T. Dickerson and H. L. Stevens for plaintiffs.\nIsaac F. Dortch, F. A. Daniels and Aycock & Winston for defendants." }, "file_name": "0523-01", "first_page_order": 567, "last_page_order": 572 }