{ "id": 11272136, "name": "H. H. RADFORD and Wife v. W. P. ROSE et als.", "name_abbreviation": "Radford v. Rose", "decision_date": "1919-10-01", "docket_number": "", "first_page": "288", "last_page": "291", "citations": [ { "type": "official", "cite": "178 N.C. 288" } ], "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": "163 N. C., 244", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "158 N. C., 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655395 ], "opinion_index": -1, "case_paths": [ "/nc/158/0344-01" ] }, { "cite": "144 N. C., 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658935 ], "opinion_index": 0, "case_paths": [ "/nc/144/0121-01" ] }, { "cite": "138 N. C., 24", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "100 N. C., 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650087 ], "opinion_index": 0, "case_paths": [ "/nc/100/0111-01" ] }, { "cite": "45 N. C., 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687930 ], "opinion_index": 0, "case_paths": [ "/nc/45/0221-01" ] }, { "cite": "23 Pa., 388", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 974077 ], "opinion_index": 0, "case_paths": [ "/pa/23/0388-01" ] }, { "cite": "157 N. C., 4", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "134 N. C., 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272405 ], "opinion_index": 0, "case_paths": [ "/nc/134/0024-01" ] }, { "cite": "175 N. C., 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657377 ], "opinion_index": 0, "case_paths": [ "/nc/175/0120-01" ] }, { "cite": "173 N. C., 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269189 ], "opinion_index": 0, "case_paths": [ "/nc/173/0124-01" ] }, { "cite": "164 N. C., 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656593 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/164/0113-01" ] }, { "cite": "163 N. C., 244", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "158 N. C., 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655395 ], "opinion_index": 0, "case_paths": [ "/nc/158/0344-01" ] } ], "analysis": { "cardinality": 443, "char_count": 8778, "ocr_confidence": 0.464, "pagerank": { "raw": 1.585978077042396e-07, "percentile": 0.6812352766512643 }, "sha256": "6fd29e9c01f4a8146d450de6392538066d63c60c5f7ce0b7f21f4bf9b380c3f3", "simhash": "1:ba2c7d5c2828af4f", "word_count": 1571 }, "last_updated": "2023-07-14T18:32:08.818827+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "H. H. RADFORD and Wife v. W. P. ROSE et als." ], "opinions": [ { "text": "AlleN, J.\nIt is well at the outset to determine the true meaning and legal effect of the clause in the will \u201cProvided they have any that have attained the age of twenty-one years.\u201d\nIf this is dealt with literally and without association with the other parts of the will it will operate as a limitation upon the estate devised to the children of the testator, and will deprive them of any interest in the estate of their father under the will, unless children are bom who reach the age of twenty-one years.\nThat this was not the intent of the testator is shown by the whole scope of the will, from which it appears that his children were the primary objects of his bounty, and that the will was made for their benefit, and after the devise to them the limitation over is not if they die leaving no bodily heirs, but \u201cshould they have no bodily heirs,\u201d then to the Eose family, indicating a purpose for them to have the property if children were born although they did not live to be twenty-one.\nThe next provision of the will throws much light on the question\u2014 \u201cShould they have an heir at their death not twenty-one years of age, that the said heir shall be in possession at the age of twenty-one years of its share of the estate.\u201d\nThis can only mean that if the plaintiff died leaving a child under twenty-one the child would take, but his right to possession would be postponed, which is entirely inconsistent with the construction that the estate of the plaintiff would be defeated and would go to the Rose family if she had no child to reach twenty-one.\nIt is the duty of the court to consider the will as a whole and to reconcile apparently conflicting provisions (Dunn v. Hines, 164 N. C., 113), and when this is done the proviso cannot be held to be a limitation on the estate of the plaintiff but as having the effect of postponing the right of enjoyment by the heirs, and so understood, the will should read, \u201cI loan to them their lifetime and then to their heirs, but should they have no bodily heirs the property shall go back to the Rose family, provided heirs under the age of twenty-one shall not take possession until they reach that age.\u201d\nUnder this construction what estate does the plaintiff take?\n\u201cLoan,\u201d in the connection in which it is used, means the same as \u201cgive or devise\u201d (Smith v. Smith, 173 N. C., 124), and a devise \u201cto them their lifetime and then to their heirs,\u201d under all the authorities, standing alone, would pass an estate in fee under the rule in Shelley\u2019s case. Daniel v. Harrison, 175 N. C., 120, and cases cited.\nThe subsequent provision, \u201cBut should they have no bodily heirs,\u201d has however the effect of making this fee simple estate defeasible, but only upon condition that they have no bodily heirs. Whitfield v. Garris, 134 N. C., 24; Maynard v. Sears, 157 N. C., 4.\nNote that the language is not \u201cdying without bodily heirs\u201d or \u201cleaving no bodily heirs,\u201d but that they \u2018\u2018have no bodily heirs,\u201d a condition fully met by the fact that the plaintiff has three bodily heirs, to wit, three living children.\nThe facts and principle involved in Dunn v. Hines, supra, sustain this interpretation as well as the rules of construction stated therein, as follows: \u201cThe first taker in a will is presumably the favorite of the testator. Rowalt v. Ulrich, 23 Pa., 388; Appeal by McFarland, 37 ib., 300. And in doubtful cases the gift is to be construed so as to make it as effectual to him as possible or as the language will warrant. Wilson v. McKeethan, 53 ib., 70. And, too, the law favors the early vesting of an estate, to the end that property may be kept in the channels of commerce. Underhill on Wills, sec. 861; Hilliard v. Kearney, 45 N. C., 221; Galloway v. Carter, 100 N. C., 111, and cases there cited.\u201d\nWe therefore conclude that tbe plaintiff took a defeasible fee under tbe will of ber father, which became absolute upon the birth of children.\nThe ease of Tyson v. Sinclair, 138 N. C., 24, is almost directly in point, except it is stronger for the plaintiff\u2019s position, in that the having bodily heirs was at the death of the first taker while here it is' having no bodily heirs.\nIn that case the devise was to Thomas B. Tyson \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,\u201d and it was held that Thomas B. Tyson took an estate in fee as the limitation to the right heirs over did not change the course of descent, and this is true of the will before us because the plaintiff, being a Eose, if she died without having had children, her heirs and the heirs of her father, the testator, would be the Eose family.\nAnd this fact \u2014 that the Eose family would be the heirs of the plaintiff if she had no. children \u2014 marks the distinction between this case and Puckett v. Morgan, 158 N. C., 344, and Jones v. Whichard, 163 N. C., 244, both of these cases being decided upon the principle that the language of the ulterior limitation carried the estate to a different line of descent and was sufficient, when read with the other parts of the will, to show that the words \u201cbodily heirs\u201d were used as a description of the person and not to denote a class who were to take in succession, and therefore that the rule in Shelley\u2019s case did not apply.\nSessoms v. Sessoms, 144 N. C., 121, is also an authority for the position of the plaintiff.\nAffirmed.", "type": "majority", "author": "AlleN, J." } ], "attorneys": [ "Wellons & Wellons attorneys for plaintiffs.", "J ames D. Parker attorney for defendants." ], "corrections": "", "head_matter": "H. H. RADFORD and Wife v. W. P. ROSE et als.\n(Filed 1 October, 1919.)\n1. Wills \u2014 Interpretation\u2014Conflicting Clauses.\nA will should be construed as a whole to effectuate the intent of the testator and to reconcile apparently conflicting provisions.\n2. Same \u2014 Estates for Life \u2014 Contingent Limitations \u2014 Children\u2014Defeasible Fee \u2014 Grandchildren\u2014Deferred Possession.\nA devise for life to testator\u2019s named children and to their \u201cheirs,\u201d in the sense of children, if they have any to attain the age of twenty-one, would, alone and disconnected from other parts of the will showing a contrary intent, deprive the grandchildren of all interest under the will unless they should attain the designated age; but with further provision, should the testator\u2019s children have no \u201cbodily heirs\u201d the estate should go to the testator\u2019s \u201cfamily,\u201d and \u201cshould they have an heir at my death not under twenty-one years of age, the said heir shall be in possession\u201d at that age: Held, the law favoring an early vesting of estates, and noting among other things the expression used, \u201chave no bodily heirs,\u201d instead of \u201cdying without bodily heirs,\u201d will construe the testator\u2019s intent that his children take a fee simple estate defeasible upon their dying without having had children, but postponing the possession of minor children born to them until they should reach the age designated.\n3. Wills \u2014 Devise\u2014\u201cLoan.\u201d\nA \u201cloan\u201d of land to the testator\u2019s children for life, with contingent limitation over, is construed as \u201cgive or devise.\u201d\n4. Wills \u2014 Estates for Life \u2014 Heirs\u2014Rule in Shelley\u2019s Case.\nConstrued alone, a devise to the testator\u2019s child for life and then to her heirs conveys a fee under the rule in Shelley\u2019s case.\n5. Same \u2014 Limitations\u2014Contingency\u2014Same Line of Descent.\nA devise to the testator\u2019s daughter for life and to the testator\u2019s family, should the daughter have no children, does not carry the estate to a different line of descent upon tlie happening of the contingency, and Puoloett v. Morgan, 158 N. C., 344, and Jones v. Whichard, 163 N. C., 244, cited and distinguished.\nAppeal by defendants from Kerr, J., at April Term, 1919, of JOHNSTON.\nThis is an action to recover $2,900, tbe balance due on tbe purchase money of a tract of land.\nTbe defendant admitted tbe indebtedness but alleged tbat the title to tbe land was defective, and tbe plaintiff agreed in tbe pleading to a cancellation of tbe contract of purchase if tbe title was not good.\n.The feme plaintiff, Mrs. H. IT. Eadford, derived her title under tbe will of her father, Henry C. Eose, tbe material parts of which are as follows: \u201cHome tract of land to be equally divided by number of acres between ~W. D. Eose, L. T. Eose, \"W\". P. Eose and my daughter, Mrs. H. H. Eadford. I loan to them their lifetime and then to their heirs, provided they have any tbat have attained tbe age of twenty-one years, but should they, my children, have no bodily heirs, tbe property shall go back to tbe Eose family. Should they have an heir at their death not twenty-one years of age, that the said heir shall be in possession at the age of twenty-one years of its share of the estate.\u201d\nHis Honor held and rendered judgment accordingly, that the plaintiff\u2019s deed conveyed a title in fee to the defendant, and the defendant excepted and appealed.\nWellons & Wellons attorneys for plaintiffs.\nJ ames D. Parker attorney for defendants." }, "file_name": "0288-01", "first_page_order": 354, "last_page_order": 357 }