#### C. M. WITTY et al. v. ED. WITTY et al.

(Filed 15 November, 1922.)

1. Wills — Interpretation—Intent—Estates—Remainders—Heirs—Descent and Distribution — Vested Interests^ — Title.

Under a devise of lands to tbe testator’s wife for life in lieu of dower, and at ber death, tbe lands to be sold at public sale, and tbe proceeds equally divided “among bis lawful beirs,” tbe title will immediately vest in tbe testator’s children at tbe time of bis death, and will not be postponed to tbe death of his widow, when tbe distribution of tbe proceeds of tbe sale is directed to be made; and where at tbe time of tbe vesting of tbe estate there were several children of tbe testator living, but all of them died during tbe continuance of tbe life estate of tbe widow, tbe title to tbe whole of tbe lands having vested in tbe last surviving child under tbe canons of descent will pass to tbe devisee under tbe will of such child. O-rantham v. Jinnette, 177 N. C., 229, cited and distinguished.

2. Same — Canons of Descent.

Tbe law favors tbe early vesting of estates; and upon a devise of lands to tbe testator’s wife for life, and at ber death to be sold and tbe proceeds divided among “bis lawful beirs,” without qualifying words, tbe word “beirs” is to be taken in its natural and primary meaning as designating tbe ones on whom the law casts tbe estate immediately on tbe death of the ancestor, and tbe direction that tbe lands be sold and tbe proceeds divided does not affect this interpretation.

*376S. Wills — Interpretation—“Heirs”—“Next of Kin” — Synonymous Terms —Words and Phrases.

In construing a will the courts will ordinarily consider the words “heirs at law” as haying the same meaning as the words “next of kin,” in dealing with real property.

4. Wills — Interpretation — Intent — Estates—Remainders—Inferences— Presumptions.

A devise of lands to the testator’s wife, in lieu of dower, and at her death to be sold “and the amount it brings equally divided among my heirs at law,” cannot affect the interpretation that the title vested in his children upon his death, the enjoyment to commence after the falling in of the life estate, because of the fact that no gift in remainder by specific words had been used, the inference thereof being from the direction to sell the lands and divide the proceeds among his heirs.

Appeal by plaintiffs and.defendant, Elizabeth Terry, from Harding, J., at September Term, 1922, of Guileoed.

Civil action in ejectment and for a sale for division of certain lands, situate in Guilford County, North Carolina.

The evidence offered by plaintiffs tended to show the following facts: That Levi R. Witty died in January, 1872, seized and possessed in fee of the lands described in the complaint, and which are in controversy here; that he disposed of said lands by his last will and testament — the effect of the terms of which are in dispute; that his wife, Louisa Witty, who was given a life estate in' the lands in controversy, survived her husband, and died on 16 December, 1920; that said Levi R. Witty was survived by five children, all of whom died before the death of his said wife and life tenant; that only one of these five children ever married, and the defendant, Mrs. E. M. Witty, is the wife of that one child, to wit, E. M. Witty; that no issue was ever born to any of said children, but that the defendant Mark Witty, Jr., is an adopted child of the testator’s married child, E. M. Witty; that the defendant Elizabeth Terry is the only surviving brother or sister of the said testator, while the other parties to this action, except Mrs. E. M. Witty and Mark Witty, Jr., are all the nephews and nieces of said Levi R. Witty.

At the close of plaintiffs’ evidence, and on motion of the defendants, there was a judgment as of nonsuit, from which the plaintiffs and the defendant Elizabeth Terry appealed.

Brooks, Hines & Smith for plaintiffs.

Thomas G. Hoyle for defendant Elizabeth Terry.

William P. Byrmm, King, Sapp & King, and Sidney S. Alderman for appellees, Mrs. E. M. Witty and Mark Witty, Jr.

*377Stacy, J.

On the hearing, the title offered was properly made to depend upon the construction of the following clause in the will of Levi E. Witty:

> “I give and devise to my beloved wife, Louisa, the plat or parcel of land (description not in dispute), to have and to hold her natural life or widowhood in satisfaction for and in lieu of her dower and thirds in all my real estate; at the death of my wife, or if she marries again, my will is that the aforesaid lands be sold at public sale (after due notice has been given) to the highest bidder, and the amount it brings equally divided among my lawful heirs. . . . My will is that the remaining portion of my lands be sold according to law to the highest bidder, and the amount equally divided among all my children, excepting my daughter Emma. She is to have $100 more than any of the other children.”

The plaintiffs and the defendant Elizabeth Terry contend that under a proper construction of the foregoing clause in the will of Levi E. Witty, the property described in the complaint is to be sold after the death of his widow, Louisa Witty, and the proceeds divided among them and the other nephews and nieces of said testator living at the death of said Louisa Witty, and that the class to take is to be determined as of the date of her death.

The defendants, Mrs. E. M. Witty and Mark Witty, Jr., contend, as held by the court below, that by the will of said Levi E. Witty a vested remainder in fee was given to the children surviving at the testator’s death, and that the remainder to the five children'so surviving accumulated in the respective survivors as each of them died without issue, until the entire estate vested in E. M. Witty, the last one to die, and was devised by him to his widow, the defendant, Mrs. E. M. Witty, for life, and the remainder to his adopted son, Mark Witty, Jr.; and that these defendants are the owners and entitled to the possession of the lands in controversy.

The case turns upon the single question as to whether the interests in remainder are vested or contingent; and as to whether the testator’s “lawful heirs” are to be determined as of the date of his death or at the death of his widow, the life tenant.

It is admitted that if vested remainders are created, the interests in remainder vested, upon the death of the testator, in the five children of his then living; that the vested interest of each of these five, as he or she died before the life tenant, accumulated in the survivors until finally testator’s son, E. M. Witty, was the only living child and heir, holding all the remainder as a vested interest, and. that when he died before the death of the life tenant, his vested right in the entire remainder passed by his will to the appellees, Mrs. E. M. Witty, his widow, as life tenant, and Mark Witty, Jr., as remainderman in fee. *378In other words, if tbe remainders created are vested, tbe class of re-maindermen is to be ascertained according to tbe general rule, i. e., as of tbe date of tbe death of tbe testator, and such being tbe case, tbe appellees, Mrs. E. M. Witty and Mark Witty, Jr., are tbe devisees or legatees of all of tbe fee in remainder. This was tbe bolding of tbe trial judge.

It is admitted, on tbe other band, that if contingent remainders are created, tbe contingency being that tbe class of remaindermen is not to be ascertained until tbe death of tbe life tenant, then tbe appellants are entitled, for themselves and other collaterals who did not appear, to an order for tbe sale of tbe land in question, now in tbe possession of tbe appellees, and for distribution of tbe proceeds.

It is undoubtedly tbe general rule of testamentary construction that, in tbe absence of a contrary intention clearly expressed in tbe will, or to be derived from its context, read in tbe light of the surrounding circumstances, an estate limited by way of remainder to a class described as tbe testator’s “heirs,” “lawful heirs,” or by similar words descriptive of those persons who would take bis estate under tbe canons of descent, bad be died intestate, vests immediately upon tbe death of tbe testator, and at which time tbe members of said class are to be ascertained and determined. Jenkins v. Lambeth, 172 N. C., 468, and cases there cited. 23 R. C. L., 549; note, Ann. Cas. 1917 A, 859; Welch v. Blanchard, 33 L. R. A. (N. S.), 1, and note. This is not only tbe general rule of construction, but it is in keeping with tbe natural and primary meaning of tbe words themselves. Wall v. Converse, 146 Mass., 345; Tuttle v. Woolworth, 62 N. J. Eq., 532. “An heir,” says Blackstone, “is be upon whom tbe law casts tbe estate immediately on tbe death of tbe ancestor.” II Blackstone, ch. 14.

In Bullock v. Downes, 9 H. L. Cas., 1, Lord Campbell stated tbe rule as follows: “Generally speaking, where there is a bequest to one for life, and after bis decease to tbe testator’s next of kin, tbe next of kin who are to take are tbe persons who answer that description at tbe death of tbe testator, and not those who answer that description at tbe death of tbe first taker. Gifts to a class, following a bequest of tbe same property for life, vest immediately upon tbe death of tbe testator. Nor does it make any difference that tbe person to whom such previous life interest was given is also a member of tbe class to take on bis death.”

Of course, in dealing with real property, “heirs at law” takes tbe place of “next of kin” in any statement of tbe rule.

This general rule has been recognized and approved by us in a number of cases, notably Jones v. Oliver, 38 N. C., 369; Brinson v. Wharton, 43 N. C., 80; Rives v. Frizzle, 43 N. C., 237; DeVane v. Larkins, 56 N. C., 377; Newkirk v. Hawes, 58 N. C., 268; Pollard v. Pollard, 83 *379 N. C., 97; Harris v. Russell, 124 N. C., 554; Wool v. Fleetwood, 136 N. C., 471, and Baugham v. Trust Co., 181 N. C., 406.

In tbe last cited case, Allen, J., speaking for tbe Court, quoted with approval tbe following from 40 Oyc., 1481: “As a general rule, tbe death of tbe testator is tbe time at wbicb tbe members of a class are to be ascertained in case of a gift to tbe testator’s beirs, next of kin, or other relatives, unless tbe context of tbe will indicates a clear intention that tbe property shall go to tbe beirs, next of kin, or other relatives at a different time, such as at tbe time of distribution, or at tbe death of tbe first taker, or at tbe date of tbe execution of tbe will. . . . Where tbe gift is to tbe beirs or next of kin of another than tbe testator, it ordinárily refers to tbe death of such other, unless tbe context of tbe will manifests that tbe class shall be determined at a different time, such as at tbe time of distribution.”

In Jenkins v. Lambeth, 172 N. C., 468, tbe same rule is stated by Hóke, J., as follows: “It is undoubtedly tbe general rule that when a testator, after a prior limitation of bis property by will, makes, in present terms, a disposition of tbe same in remainder to bis own beirs or right beirs, these beirs, nothing else appearing, are to be ascertained and determined as of tbe time of bis death. This is not only tbe primary meaning of tbe word beirs, but tbe position is said to be favored by tbe courts because in its tendency it hastens tbe time when tbe ulterior limitation takes on a transmissible quality,” .citing a number of authorities.

It will be noted in tbe case at bar, as in those cited above, that no qualifying words are used before or after tbe phrase “my lawful beirs.” These words have a well defined meaning. Their significance is fixed by law, and when they are used in a deed or will without any superadded words or phrases, indicating a different meaning, they are to be understood as having been used in their ordinary sense, and according to their legal acceptation. Rives v. Frizzle, supra; Harris v. McLaren, 30 Miss., 533.

Again, tbe fact that tbe direction is to sell tbe realty at tbe expiration of tbe preceding particular estate and to divide tbe proceeds derived therefrom ordinarily will not affect tbe general rule as to when the remainder is to vest. Vanhook v. Vanhook, 21 N. C., 589; Cropley v. Cooper, 19 Wall., 167; Bates v. Spooner, 75. Conn., 501; Atchison v. Francis, 165 N. W. (Iowa), 587.

■ In tbe last case just cited, wbicb contains an exhaustive review of a ' number of cases on tbe subject, it is said: “Of tbe multitude of precedents bearing upon tbe construction of wills in wbicb tbe testator first provides a life estate for bis widow or other person and follows this by a direction that upon tbe expiration of such life estate, tbe property *380shall be divided or shall be sold and the proceeds divided between certain named persons, or members of a designated class of persons, and holding-such remainder to be vested, we will cite a few illustrative cases. If we first look to jurisdictions other than our own we find, with very few exceptions, a unanimous holding that in such cases the beneficiaries named acquire a vested right therein immediately upon the death of the testator” (citing authorities from a number of jurisdictions).

And after a minute examination of some of the cited cases, the Court continues: “These quotations fairly reflect the holdings in all of the cases to which we have called attention on this branch of the cases under consideration. Indeed, after a somewhat extended research, we have found no case whatever in which the soundness of that rule is questioned or denied. It is true that here and there a precedent may be found in which the distinction we have pointed out has not been noticed, but in such cases the omission would seem to have occurred simply because counsel failed to raise or to argue the question.”

And further it is said: “In principle there is no difference, so far as the vesting of the right is concerned, between a direction to divide the property and a direction to sell the property and divide the proceeds. A direction to sell and divide does no more than to work an equitable conversion of the real property as of the time of the death of the testator, and the gift, technically speaking, becomes a bequest instead of a devise, but the right of the beneficiary therein vests alike in either case.”

In Hoover v. Smith, 96 Md., 393, the provisions of the will under consideration were as follows: “I devise and bequeath to my beloved wife, Elizabeth, all my property, real, personal and mixed, to have and to hold the same during her natural life, or as long as she shall continue to be my widow. After either of the above events the property to be sold and divided equally among my lawful heirs.”

In construing this clause, which is strikingly similar to the one in the instant case, the Court said: “The law favors the early vesting of estates, and ‘courts will, in the absence of plain expressions, or an intent plainly inferable from the terms of the will, adopt the earliest time for the vesting where there is more than one period mentioned.’ Straus v. Rost, 67 Md., 476. It is a well recognized rule of construction that in doubtful cases the interest shall be deemed to be vested in the first instance, rather than contingent, unless the instrument under consideration does not admit of such construction. When a testator has employed terms in his will which in their ordinary signification are in accord with such familiar and fixed rules of law, it should require very clear expressions elsewhere in the will to justify the court in giving such terms some other and unusual meaning. When, therefore, a testator directs that after his wife’s death or marriage his property is to *381be sold and divided equally among bis lawful beirs,’ and makes no other disposition of tbe remainder after bis wife’s death or marriage, when and in whom does such remainder vest? At common law an heir is lie who is born or begotten in lawful wedlock, and upon whom tbe law easts tbe estate in lands, tenements, or hereditaments immediately upon tbe death of bis ancestor.’ In 15 Ency. of Law (2 ed.), 322, it is said: ‘A devise to beirs, whether to one’s own beirs or to the beirs of a third person, designates not only tbe persons who are to take, but tbe manner and proportion in which they are to take. Where there are no words to control tbe presumption, tbe law presumes tbe intention to be that they take as beirs would take by tbe rules of descent’; and again it is there said: It is well settled that a gift to tbe beirs of one will be construed as referring to those who are such at tbe time of tbe ancestor’s death.’ If, then, we adopt tbe ordinary meaning of tbe term used by tbe testator (lawful beirs), we find that be presumably intended that those who would be entitled to bis real estate at tbe time of bis death should get tbe benefit of tbe proceeds of tbe sale. It cannot be successfully contended that merely because be gave bis wife an estate for life, or as long as she continued to be bis widow, tbe vesting of tbe estate given tbe beirs should be postponed until tbe widow’s interest ceased.”

While tbe general rule of construction is stated to be that a bequest or devise by way of remainder to tbe “heirs” of a testator will be construed as referring to those who are such at tbe time of bis death, yet tbe authorities all agree that this rule must give way to tbe controlling rule of interpretation, that tbe intent of tbe testator is to govern, provided it does not conflict with tbe settled rules of law. In fact, this is tbe cardinal principle in tbe interpretation of wills to which all other rules must bend. Sears v. Russell, 8 Gray (Mass.), 86. Thus it has been held that contingent and not vested remainders were created where tbe testator, in making an ulterior disposition of property after a particular life estate, uses such expressions as “to such of my sons as may be living at their mother’s death,” or “surviving at her death,” or “to tbe representatives of such as may have died before her death,” showing clearly that not only tbe enjoyment of tbe remainder, but also tbe right to take it was intended to 'be postponed until after tbe expiration of tbe preceding life estate. Whitesides v. Cooper, 115 N. C., 570; Bowen v. Hackney, 136 N. C., 187; Freeman v. Freeman, 141 N. C., 97; James v. Hooker, 172 N. C., 780; Jenkins v. Lambeth, 172 N. C., 466; Thompson v. Humphrey, 179 N. C., 44; In re Kenyan, 17 R. I., 149.

But in tbe case at bar we have no such expression-as any of those just mentioned. It is provided that tbe remainder after tbe life estate is to be divided equally among “my lawful beirs,” simplicity, and this imports a division among those who were tbe beirs of tbe testator at *382bis death, and who took in right at that time, though they were not to come into actual possession and enjoyment until the previous benefit, intended for their mother, should terminate by her death. Wright v. Gooden, 11 Del., 414.

Appellants contend, however, for a contrary construction under authority of Grantham v. Jinnette, 177 N. C., 229. In that case the Court was construing the will of a nuTlius jilius, one of those melancholy characters, in law as in life, who had no heirs, either at his death or at the death of his widow, the first taker under his will. Those claiming the lands at the death of the life tenant were claiming only through those connected to the testator by illegitimacy. The main question was between the widow’s descendants and the escheat right of the University. The widow’s descendants claimed that she was both life tenant and remainderman; that she not only took the life estate, but was the testator’s lawful “heir”; and that the whole fee merged in her. The University contended that the widow could not be life tenant and heir; that the statute makes a widow heir only when the property is not disposed of by will; that this testator did dispose of his property by will, and the widow was not therefore his heir; and that therefore the testator, as to the remainder in fee, was without heirs. The Court held this to be correct, and that the fee escheated to the University. There was no question before the Court as to whether the remainders were vested or contingent.

The argument there advanced that a direction to convert the land into personalty and to divide it after the death of the life tenant indicated an intention to ascertain the testator’s heirs as of the time of the falling in of the life estate, rather than as of testator’s death, was used in connection with the significant fact that at the time of the making of the will there was only one person to whom the testator could have considered as coming within the class of his “heirs,” and at the death of the testator, there was still only one, and that, therefore, his direction to divide the remainder among a plurality of takers showed an intention of the testator that the one person who at his death would presumably constitute the class should not take the remainder (as well as the life estate), but that he presumed that at the end of the life estate he might have a plurality of heirs.

"We have no such case here.

Another significant fact in the Grantham v. Jinnette case, supra, and a fact upon which the Court laid emphasis in its opinion, was that the property directed to be sold and divided was not simply all of the property which had been left to the wife for life, but was “all property, real and personal, left by her under item 3 of the will.”

This decision cannot be. held to sustain the contention of the appellants in the case at bar.

*383Nor do we tbink the fact that the will contains no specific words of gift in remainder, other than the inference from the direction to sell and to divide the proceeds, can be held to delay the vesting of said estates, since the enjoyment of the remainders is postponed only in the interest of the life tenant, and not in view of the character or quality of the remaindermen. Fairly v. Kline, 2 Pennington (N. J.), 754; 4 Am. Dec., 414; In re Thomman's Estate, 161 Pa., 444; 29 Atl., 84. It is clear from the face of the will that the distribution among the testator’s children was postponed in order to make a comfortable provision for the widow, and that, too, “in lieu of her dower and thirds,” and not on account of anything affecting the children (their arriving at a certain age, marrying, etc.) so as to cause him to attach any condition to the legacies.

In Underhill on Wills, sec. 866, this position is treated as follows:

> “A legacy will the more readily be construed as vested in every case where there is no other gift than a direction to pay or to distribute money, if it is apparent that the payment or the distribution was postponed, not in order that the legatee should personally perform some act or acquire some personal qualification as a condition precedent to payment, but where the postponement is clearly intended for the benefit of some one who takes a prior interest, or, in the language of the eases, where the postponement is ‘for the convenience of the estate.’ ”

After a careful investigation of the record and the authorities on the subject, we are of the opinion that his Honor’s judgment was correct, and that it must be upheld.

We deem it proper to say that, in considering this appeal, we have found the excellent briefs filed by counsel on both sides of material aid and assistance.

Affirmed.