{ "id": 8654415, "name": "W. V. HARTMAN, Trustee in Bankruptcy for T. H. (SHACK) FLYNN, Bankrupt, v. T. H. (SHACK) FLYNN and Wife, MATTIE FLYNN, et al.", "name_abbreviation": "Hartman v. Flynn", "decision_date": "1925-04-15", "docket_number": "", "first_page": "452", "last_page": "456", "citations": [ { "type": "official", "cite": "189 N.C. 452" } ], "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": "187 N. C., 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654368 ], "opinion_index": 0, "case_paths": [ "/nc/187/0535-01" ] }, { "cite": "186 N. C., 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654027 ], "opinion_index": 0, "case_paths": [ "/nc/186/0510-01" ] }, { "cite": "141 N. C., 201", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "172 N. C., 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254759 ], "opinion_index": 0, "case_paths": [ "/nc/172/0579-01" ] }, { "cite": "172 N. C., 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255017 ], "opinion_index": 0, "case_paths": [ "/nc/172/0628-01" ] }, { "cite": "21 N. J. L., 13", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 396810 ], "opinion_index": 0, "case_paths": [ "/njl/21/0013-01" ] }, { "cite": "55 N. C., 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683866 ], "opinion_index": 0, "case_paths": [ "/nc/55/0028-01" ] }, { "cite": "123 N. C., 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657877 ], "opinion_index": 0, "case_paths": [ "/nc/123/0134-01" ] }, { "cite": "159 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656217 ], "opinion_index": 0, "case_paths": [ "/nc/159/0001-01" ] }, { "cite": "117 N. C., 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653538 ], "opinion_index": 0, "case_paths": [ "/nc/117/0497-01" ] }, { "cite": "163 N. C., 243", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "173 N. C., 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269189 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/173/0124-01" ] }, { "cite": "175 N. C., 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657377 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/175/0120-01" ] }, { "cite": "184 N. C., 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268876 ], "opinion_index": 0, "case_paths": [ "/nc/184/0013-01" ] }, { "cite": "29 L. R. A. (N. S.), 963", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "112 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650307 ], "opinion_index": 0, "case_paths": [ "/nc/112/0001-01" ] } ], "analysis": { "cardinality": 581, "char_count": 11283, "ocr_confidence": 0.456, "pagerank": { "raw": 1.7689015828088865e-07, "percentile": 0.7110918435785253 }, "sha256": "ad0cc47693ee50669a10d5c713f63e3e7cbe1e987a5a194f36e3c8280028e3e1", "simhash": "1:ae24ab6d544c6dac", "word_count": 2049 }, "last_updated": "2023-07-14T21:40:32.095485+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. V. HARTMAN, Trustee in Bankruptcy for T. H. (SHACK) FLYNN, Bankrupt, v. T. H. (SHACK) FLYNN and Wife, MATTIE FLYNN, et al." ], "opinions": [ { "text": "Varser, J.\nIt is conceded that, if the rule in Shelley\u2019s case applies to this devise to Shack Flynn, the judgment of the trial court must be affirmed.\nThe rule in Shelley\u2019s case is imbedded in the jurisprudence of North Carolina as a well-settled rule of property. Whatever may have been its status prior to that time, it was set at rest by Starnes v. Hill, 112 N. C., 1. At that time it was debated, in the minds of some, that the statute, now C. S., 1739, had the effect of abolishing this rule, but this is Uow no longer an open question.\nWe find a most interesting and learned discussion of this doctrine in Mordeeai\u2019s Law Lectures, Vol. 1, 649 et seq. An elaborate discussion also appears in 24 R. C. L., 887. A complete American judicial history of this rule appears in the very elaborate treatise in 29 L. R. A. (N. S.), 963-1170, with a list of the North Carolina cases on pages 1165-1166.\nIn Hampton v. Griggs, 184 N. C., 13, it is said: \u201cWhatever reasons, pro and con, may have been advanced originally in support of the wisdom or impolicy o\u00a3 following the rule in Shelley\u2019s case, so far as the courts of North Carolina are concerned, this is no longer an open question.\u201d \u201cMuch has been said in support of its adoption, and something in criticism; but, with us, it is a rule of property as well as a rule of law, and we must observe it wherever the facts call for its application. The Legislature alone may change it if it is thought to be unsuited to the needs of our day or to the industrial life of our times. It is one of the ancient landmarks which the fathers have' set in the law, as it relates to the subject of real property, and we should be slow to remove it.\u201d\nIn this case the following prerequisites to the application of the rule in Shelley\u2019s case are collated and announced:\n\u201c(1) There must be, in the.first instance, an estate of freehold in the ancestor or by the first taker; and (2) the ancestor must acquire this prior estate by, through, or in consequence of the same instrument which contains the limitation to his heirs; (3) the words \u2018heirs\u2019 or \u2018heirs of the body\u2019 must be used in the technical sense as importing a class of persons to take indefinitely in succession, from generation to generation, in the course marked out by the canons of descent; (4) the interest acquired by the ancestor and that limited to his heirs must be of the same character or quality- \u2014 -that is to say, both must be legal,\u2019 or both must be equitable, else the two would not coalesce; and (5) the limitation to the heirs must be of an inheritance, in fee or in tail, and this must be made by way of remainder.\u201d\nIn the first place, the defendant asserts the nonapplicability of the rule in Shelley\u2019s case, because of the contingent life estate of Mattie Flynn, wife of Shack Flynn.\nIn Daniel v. Harrison, 175 N. C., 120, the identical question was decided, and the provision for Fannie A. Daw during her widowhood was held not to interfere with the application of the rule in Shelley\u2019s case.\nIn Smith v. Smith, 173 N. C., 124, the same question was presented. In that case the devise was: \u201cI loan to my son, D. L. Smith, two tracts of land (describing same), to have during his life, at his death to his bodily heirs and to his wife her lifetime or widowhood.\u201d\nThe second intervening estate, during \u201cher lifetime or widowhood,\u201d did not prevent the application of the rule.\nIn Jones v. Whichard, 163 N. C., 243, the rule is stated thus: \u201cWhen a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without interposition of another estate, of an interest of the same legal or equitable quality to his heirs, or beirs of bis body, as a class of persons to take in succession, from generation to generation, tbe limitation to tbe beirs entitled tbe ancestor to tbe whole estate.\u201d\nIn Nichols v. Gladden, 117 N. C., 497, tbe rule as given in 1 Coke, 104, is stated thus: \u201cThat when tbe ancestor, by any gift or conveyance, taketb an estate of freehold, and in tbe same gift or conveyance an estate is limited either mediately or immediately to bis beirs, in fee or in tail, tbe word \u2018beirs\u2019 is a word of limitation of tbe estate and not a word of purchase.\u201d\nWe see that these statements are necessarily tbe same. Tbe words \u201ceither with and without tbe interposition of another estate\u201d in tbe one \u00abperform tbe same office as tbe words \u201ceither mediately or immediately\u201d in tbe other. Ex vi ierminorum they include tbe contingent estate, durante viduitate, as provided in the instant case. Smith v. Smith, supra.\n\u201cTbe interposition of a life estate in another does not interfere with tbe operation of tbe rule, so far as tbe beirs are concerned, when tbe estate comes to them they take by descent -and not by purchase, and tbe ancestor, or first taker, has full power of control over tbe property, and may sell or encumber as a full owner may, subject only to estate in remainder to tbe wife during her life or widowhood, and tbe rights incident to it.\u201d Smith v. Smith, supra; Cotton v. Moseley, 159 N. C., 1; Edgerton v. Aycock, 123 N. C., 134; Kiser v. Kiser, 55 N. C., 28; Quick v. Quick, 21 N. J. L., 13.\nWe therefore conclude that tbe contingent estate of Mattie Elyn'n does not prevent tbe application of tbe rule in Shelley\u2019s case.\nIt is further contended that tbe words \u201cbodily beirs\u201d are not tbe same as \u201cbeirs of tbe body.\u201d This has been adjudicated with definiteness and certainty against defendant\u2019s contention. Blake v. Shields, 172 N. C., 628.\nIn tbe instant case it is clear that tbe use of \u201cbodily beirs\u201d is not a descriptio personarum, but tbe use is in tbe technical sense, Revis v. Murphy, 172 N. C., 579; Jones v. Ragsdale, 141 N. C., 201; Daniel v. Harrison, supra.\nIn Bank v. Dortch, 186 N. C., 510, Hoke, J., afterwards Chief Justice, again reviews tbe authorities with a wealth of learning and clearness, and decides tbe same contention against what is now tbe defendant\u2019s contention in tbe instant case.\nIn Walker v. Butner, 187 N. C., 535, this Court continues to reaffirm this well-established rule, and gives as a real present-day reason for its extended life by tbe courts, and by tbe sufferance of Legislature, that \u201cit prevents tbe tying-up of real estate by making possible its transfer one generation earlier, and also subjecting it to tbe payment of tbe debts of tbe first taker.\u201d\nTbe Court also says: \u201cIt is doubtless, for tbis reason, that tbe rule bas never been repealed in North Carolina.\u201d\nAccordingly, we are of opinion tbat tbe devise in tbe instant case comes clearly witbin tbe rule in Shelley\u2019s case, and bad tbe effect to vest into Shack Flynn an estate in fee simple in tbe lands devised, subject to an estate in favor of Mattie Flynn, bis wife, contingent upon her survival of him and during her widowhood. Inasmuch as her rights, as well as tbe homestead rights of Shack Flynn, are fully protected, let tbe judgment of tbe trial court be\nAffirmed.", "type": "majority", "author": "Varser, J." } ], "attorneys": [ "Manly, Hendren & Womble and Forrest G. Miles for plaintiff.", "T. ~W. Eallam for defendants." ], "corrections": "", "head_matter": "W. V. HARTMAN, Trustee in Bankruptcy for T. H. (SHACK) FLYNN, Bankrupt, v. T. H. (SHACK) FLYNN and Wife, MATTIE FLYNN, et al.\n(Filed 15 April, 1925.)\n1. Estates \u2014 Rule in Shelley\u2019s Case.\nThe rule in Shelley\u2019s ease is now well established as a rule of property, as well is a rule of law, in the jurisdiction of our State, subject to change by statute.\n2. Same \u2014 Remainders\u2014Homestead\u2014Bankruptcy.\nA devise of land to the testator\u2019s son, and then to his bodily heirs, by the application of the rule in Shelley's ease, gives to the son a fee-simple estate, and a further devise to his wife, should she survive him, does not affect the application of this rule; and when the son has become bankrupt, his trustee in bankruptcy may maintain his action to enter into possession of the lands and sell the same for the benefit of the creditors of the estate, subject to the contingent estate of the wife and the homestead of the bankrupt.\nAppeal by defendant, T. H. (Sback) Flynn, from a judgment of McElroy, J., at November Term, 1924, of Foksyth.\nTbe plaintiff, Hartman, is tbe duly appointed trustee in bankruptcy of T. H. Flynn, wbo is tbe same person as Sback Flynn.\nTbis action is to recover a tract of land from Sback Flynn, bankrupt, and Mattie Flynn, bis wife, for tbe use of tbe bankrupt estate.\nIt further appears that, in order to adjudicate tbe rights of tbe children of Sback Flynn in tbis land, those now in esse, as well as those wbo may be hereafter born, were made parties.\nTbe plaintiff\u2019s right to recover is dependent on item 4 of tbe will of Thomas W. Flynn. Tbis item is as follows:\n\u201cI give to my son, Sback, so long as be lives, and then to bis bodily heirs, tbe Randleman plantation, lying mostly on tbe east side of tbe road leading from tbe river out by H. M. Scott\u2019s to tbe Old Richmond Road, two small strips lying on tbe west side of tbe road, one near H. M. Scott\u2019s, and tbe other near Sid Butner\u2019s, known as tbe Old Poplar Springs; tbis land to be valued at $1,600.00. But if be should die before bis wife, Mattie, she shall bold tbe same plantation as long as she remains single.\u201d\nTbe court rendered tbe following judgment:\n\u201cTbis cause coming on to be beard before bis Honor, P. A. McElroy, judge presiding at tbe November Term, 1924, of tbe Superior Court of Forsyth County, and being beard upon tbe pleadings and tbe agreed statement of facts, tbe court is of tbe opinion, and so bolds, that under tbe terms of tbe will of Thomas W. Flynn, which is attached to tbe complaint, and under item 4 thereof, tbe defendant, T. H. (Shack) Flynn, was devised a title in fee simple to the lands described in item 4 of the said will, subject only to an estate to Mattie Flynn, wife of T. H. (Shack) \u2019 Flynn, during her widowhood, in the event the said T. H. (Shack) Flynn dies during the lifetime of the said Mattie Flynn.\n\u201cIt is therefore decreed, ordered and adjudged that the plaintiff, W. Y. Hartman, trustee in bankruptcy of T. H. (Shack) Flynn, is the owner of and is entitled to the possession of the lands described in the fourth item of said will, he holding a fee-simple title thereto, subject only to the contingent interest of the said Mattie Flynn, as aforesaid, and subject to a homestead to T. H. (Shack) Flynn, as provided by law.\n\u201cAnd it is further ordered that the defendant, T. H. (Shack) Flynn, and wife, Mattie Flynn, surrender possession of said lands described in the fourth item of said will immediately to the said W. Y. Hartman, trustee in bankruptcy of T. H. (Shack) Flynn, bankrupt, and that the said W. Y. Hartman, trustee, be put in possession thereof, subject to a homestead therein, as provided by law.\n\u201cIt is further ordered that the costs of this action be taxed against the defendant, T. H. (Shack) Flynn.\u201d\nThe defendant, Shack Flynn, contends that he was only a life tenant of the lands in controversy, while plaintiff contends that he was a tenant in fee, subject to the contingent life estate of Mattie Flynn, his wife, and that the plaintiff therefore is entitled to the said lands for the use of the bankrupt estate, subject to this contingent life estate of Mattie Flynn and the homestead rights of Shack Flynn.\nManly, Hendren & Womble and Forrest G. Miles for plaintiff.\nT. ~W. Eallam for defendants." }, "file_name": "0452-01", "first_page_order": 530, "last_page_order": 534 }