#### T. J. THOMPSON et al. v. NANCY A. BATTS et al.

(Filed 24 February, 1915.)

1. Estates — Remainders—Heirs—Children.

. While as a general common-law rule, subject to some exceptions, a conveyance of an estate for life in lands to another, with remainder to the heirs of the grantor, could-not divest the grantor of the fee, under the rule that nemo est hceres viventis, this does not prevail under the provisions of the Revisal, sec. 1583, that “any limitation by deed, will, or other writing to the heirs of a living person shall be construed to be the children of such person, unless a contrary intention appear, by the deed or will.”

2. Same — Deeds and Conveyances — Interpretation of Statutes.

A conveyance of land in contemplation of marriage, and in lieu of dower, to M., “to descend to the heirs of the body of the said M. in fee simple, the issue of such marriage, and on failure of issue to revert to *334the heirs of” the grantor, providing also for the year’s support of the grantee and that she shall receive a child’s part of his personal estate: Meld, the grantor, from the construction of the instrument, did not anticipate that he would survive his wife, or that there was a possibility of reverter to him; and that the “reverter” to his heirs, under Revisal, 1583, meant to his children after the death of his wife and the nonhappening of the stated contingency.

Appeal by plaintiffs from Ferguson, J., at November Term, 1914, of "WlLSON.

Proceeding for partition of a tract of land wbicb originally belonged to Alfred Thompson, who was twice married.

He bad children by the first marriage, and no children by the second marriage.

On 6 February, 1879, in contemplation of his second marriage, he executed a deed to his intended wife, Martha Jane, conveying the land in controversy for life, and with the following limitations: “The aforesaid tract of land to descend to the heirs of the body of said Martha Jane in fee simple, the issue of such marriage, and on failure of issue to revert to the heirs of said Thompson.” ,

Alfred Thompson died before his wife, leaving those represented by the plaintiffs as his heirs, and also leaving a will in which he devised the ’ land to those represented by the defendants.

His Honor held that upon the death of Martha Jane without issue the title reverted to Alfred Thompson and passed to the defendants by his will, and entered judgment accordingly, and the plaintiffs excepted and appealed.

F. A. & 8. A. Woodard, Jacob Battle, Winston & Biggs, and R. C. Strong for plaintiffs.

W. A. Finch and II. Gr. Connor, Jr., for defendants.

AlleN, J.

The plaintiffs contend that the words in the deed “the heirs of said Thompson” mean children, and that they take by way of contingent remainder, while the contention of the defendants is that the word “heirs” being used in connection with the name of the grantor, there can be no remainder, upon the familiar maxim nemo est hieres viventis, and that upon the happening of the contingency the estate reverted to the grantor and passed to them under his will.

This position of the defendants seems to have prevailed at common law, the principle being that as no one could be heir to the living the attempted limitation to the heirs of a living person was void, and being void, upon the happening of the contingency and the determination of the intermediate estate there was a reverter to the grantor.

Feme says, page 51: “A limitation to the right heirs of the grantor will continue in himself as the reversion in fee. • As where a fine was *335levied to tbe use of tbe wife of tbe co-user for life, remainder to tbe use of B. in tail, remainder to tbe use of tbe right beirs of tbe co-user, it was adjudged tbat tbe limitation of tbe use to tbe right beirs-of tbe co-user was void, for tbat tbe old use of tbe fee continued in him as a reversion.”

In Read and Morpeth v. Evington, Moor K. B., 284, it was ruled tbat “If a man seized in fee make a feoffment to tbe use of A. in tail or for life, remainder to tbe use of bis own right beirs, tbe land upon tbe death of A. without issue returns to tbe feoffor as bis ancient reversion, and does not rest in bis right heir as a remainder by purchase.”

Sir Edward Coke says: “If a man make a gift in tail, or a lease for life, tbe remainder to bis own fight beirs, this remainder is void and be bath tbe reversion in him, for tbe ancestor during bis life bearetb in bis body (in tbe judgment of law) all bis beirs.” Co. Litt., ?2.

In Hargrave and Butler’s notes (1 Am. Ed., from 19 London Ed. of 1853), one of tbe notes to this section states tbe following case, being note 3 : “Feoffment to tbe use of a feoffee for forty years, remainder to B. in tail, remainder to tbe right beirs of tbe feoffor. It is tbe old reversion, and tbe feoffor may devise it; for tbe use returned to tbe feoffor for want of consideration to retain it in tbe feoffee till tbe death of tbe feoffor.” See, also, 2 Wash. Real Property, 692, and Robinson v. Blankinship, 92 S. W., 854, 24 A. and E. Enc. L., 398.

The- same principle is recognized in King v. Scoggin, 92 N. C., 99, where tbe Court says: “It is true, remainders are created by deed or writing, but tbe estate is sometimes created so tbat what is called a remainder is, in effect, only a reversion; as, for instance, when an estate is given to one for life, remainder to tbe right beirs of tbe grantor (2 Washburn on Real Property, 692; Burton on Real Property, 51), and this must be tbe kind of remainder classed with reversions which go to tbe donor or to him who can make himself heir to him.”

This rule to tbe effect of using tbe word “heirs” in connection with a living person was not invariable at common law, as is pointed out by Justice Walker in Campbell v. Everhart, 139 N. C., 503. lie says: “It appears to have been established by tbe authorities tbat, prima facie, tbe word 'heir’ should be taken in its strict legal sense, but if there was a plain demonstration in tbe will tbat tbe testator used it in a different sense, tbe court would assign tbat meaning to it, wha,t was sufficient to show tbat tbe testator did not intend tbat it should have its technical construction depending largely upon tbe language employed in connection with it and tbe circumstances under which tbe word was used. Broom’s Legal Maxim (8 Ed.), 521, marginal page 523. It was likewise held in tbe case of a will tbat tbe rule bad no place, if tbe testator knew of tbe existence of tbe parents and intended bis devise to take effect during bis life. Broom, 524. . . . But tbe maxim was also extended to *336deeds, and a limitation (tbe word is bere used in tbe sense of conveyance) To tbe beirs of a person’ wbo is living was beld to be void for uncertainty, as no one can in any proper sense be tbe beir of .a living person, and it could not, therefore, be known wbo were to have the benefit of tbe conveyance; but it was likewise tbe rule in regard to a deed that, if anything appeared on its face to indicate that tbe grantor used tbe word 'heirs’ as designaMo persona-rum, or' if a preceding estate was created so as to make tbe limitations to tbe beirs of tbe living person a contingent remainder, depending for its vesting upon tbe event of tbe death of tbe ancestor before tbe life estate terminated, tbe word 'heirs’ was construed to mean children.”

Assuming, however, that tbe principle prevails with us unimpaired, except as changed by statute, it remains to consider tbe effect of Revisal, 1583, which was adopted in this State in 1827 and reads as follows: “Any limitation by deed, will, or other writing to tbe beirs of a living person shall be construed to be to tbe children of such person, unless a contrary intention appear by tbe deed or will.”

Tbe learned counsel for appellee, adverting to tbe position of tbe plaintiffs that tbe word “heirs” in tbe deed means children under tbe statute, ■ says: This would possibly have been so bad there been no intervening estate conveyed, but an estate having been conveyed to Martha Jane Edmundson with tbe contingent limitation- over, which possibly might vest and thereby defeat any estate in tbe beirs of Alfred Thompson, would take this out of tbe terms of tbe statute; and in support of bis view be relies on Jones v. Ragsdale, 141 N. C., 200; Marsh v. Griffin, 136 N. C., 334.

We do not agree with counsel that tbe rule of construction declared by tbe statute does not operate when an intervening estate is conveyed, nor do we think tbe authorities cited support this contention, but that tbe effect of tbe decisions is that where there is a conveyance to a living person, with a limitation to bis beirs, tbe statute is not applicable, which is not our case, because bere tbe limitation is to tbe beirs of tbe grantor and not to tbe beirs of tbe grantee.

Tbe words in tbe habendum in tbe Marsh case were: “To her, tbe party of tbe second part, her beirs and assigns, during her natural life, and at her death [ben to belong to her bodily beirs, to have and to bold in fee simple forever,” and tbe Court said: “The contention that this deed gave her only a tenancy in common with her children is unfounded. Tbe Code, sec. 1329, providing that a limitation 'to tbe beirs of a living person shall be construed to be tbe children of such person,’ applies only when there is no precedent estate conveyed to said living person, else it would not only repeal tbe rule in Shelley s case, but would convert' every conveyance to 'A. and bis heirs’ into something entirely different from what those words have always been understood to mean.”

*337This language of the .Court was quoted with approval in the Jones case and applied to a conveyance to “Zilphia S. Jones and her heirs by her present husband, Levy Jones, the land in controversy, .... to have and to hold the said land and appurtenances thereunto belonging, to the said Zilphia Jones and her heirs by her present husband, and assigns, to her only use and behoof.”

We are therefore without decision upon the statute upon the facts presented here, and as the case of the defendant rests upon the position that the limitation in the deed is' to the heirs of a living person, we must give effect to the statute and hold that “heirs” “shall be construed to be the children of such person,” as no contrary intent appears in the deed.

Ah examination of the entire deed indicates very clearly that the grantor did not anticipate that he would survive his wife, or that there was a possibility of reverter to him.

He conveys the land in lieu of dower, and immediately following the clause we have been considering provides: “That the said Martha Jane shall have one year’s provision for self and family out of the personal estate of said Thompson at his death, to be set apart to her in the usual way; and also two feather beds, now her own; in addition thereto, it is agreed that the said Martha Jane shall receive a child’s part of the personal estate of said Thompson at his death. And should said Thompson hereafter acquire any real estate, the said Martha Jane may dower on ' the same.”

Upon careful consideration of the case, being of opinion that heirs is to be construed children, and as such they take by way of contingent remainder, the- judgment is

Reversed.