#### WILL T. YELVERTON et al. v. WILL E. YELVERTON et al.

(Filed 1 December, 1926.)

Wills' — Devise—Lands—Estates—“Heirs at Law” — Descent and Distribution — Personalty.

Where the testatrix has died leaving her surviving no husband, nor lineal descendants, nor father, nor mother, nor brother, nor sister, nor issue of such, and has by the express terms of her will devised certain residue in her lands, transmitted by descent from her father, to her “heirs at law,” these heirs taking under the same tenure the same quality and quantity of the estate, acquire the lands as if transmitted to them under the Fourth Canon of Descent, and not as purchasers under the will, and are to be determined by their being of the same blood of the transmitting ancestor, the father, in exclusion of the collateral relations of the testatrix on her mother’s side. As to personalty so devised, the next . of kin would take under the statute of distribution.

Civil actioN, before Granmer, J., at August Term, 1926, of WayNE.

The action was commenced for the partition of 222% acres of land belonging to Mary Emma Aycock, who died on 14 February, 1925. There was an answer filed in the proceeding raising an issue, and the cause was transferred to the Superior Court. In the Superior Court there was an agreed statement of facts, which may be briefly recapitulated as follows:

1. Mary Emma Aycock died in Wayne County on 14 February, 1925, leaving a last will and testament, which, together with ■ the codicil thereto, was duly admitted to probate and admitted to be the last will and testament of said testatrix.

2. Mary Emma Aycock, at the time of her death, left her surviving no husband, nor lineal descendants, nor father, nor mother, nor brother, nor sister, nor issue of such.

3. The plaintiffs are lineal descendants of deceased brothers and sisters of the mother of said testatrix,. Mary Emma Aycock, and are the next collateral relations, capable of inheriting of said Mary Emma Aycock, who are of the blood of the mother of said Mary Emma Aycock.

4. The answering defendants are lineal descendants of deceased brothers and sisters of the father of said Mary Emma Aycock, and are the next collateral relations, capable of inheriting of said Mary Emma Aycock, who are of the blood of the father of said Mary Emma Aycock.

5. That besides real estate situated in the town of Fremont and devised to Will T. Yelverton, the only other real estate of which the said Mary Emma Aycock died seized and possessed, was a farm of 222 acres, which said farm was transmitted to the said Mary Emma Aycock by descent from her deceased father, Jonathan T. Edgerton.

*615Tbe will of Mary Emma Ayeock is as follows: “I, Mary Emma Aycock, of tbe town of Fremont, State of N. Carolina, declare tbis to be my last will and testament.

At my death it is my will tbat all my just debts and all expenses for my burial and burying grounds, wbicb includes a proper burial, correct engraving on tombstone, erecting marble bead and foot slab to grave, and all other necessary work for neatness and completion be paid out of my estate.

I intrust to Memorial Church (Baptist faith) in Wayne County, of which my parents were members, the keeping of the sum of one thousand dollars, to be loaned out and interest used to keep up the graves or burying places of my father and mother, myself and husband, and our two children, six in all, in neat, clean, decent order, the names of whom may be found on tombstones as follows, in the Ayeock burying ground near what is called Hook’s Crossing, about one-half mile, more or less, on east side pf W. & W. E. E., my husband’s old home: Eld. J. T. Edgerton and wife, Penelope; J. W. Aycock and wife, Emma, and our two little children, Jonathan B. and Mary Leila, all in the same row. When the above request is carried out, work paid for, and the said church paid for its trouble, the remainder should there be any, I desire to be used for the benefit of said church, or their pastor. I give and bequeath to said Memorial Church the sum of one thousand dollars, tOobe loaned out and interest used for the benefit of said church, in whatever way the church thinks best and proper, to have and to hold the same unto the said Memorial Church forever. I desire that the note of three hundred dollars and interest held against Oscar and Arthur Hooks be canceled forever.

I give, devise and bequeath to my cousin, Will T. Yelverton, his heirs and assigns all my real estate, hardware stock, bank stock and house furnishings in the said town of Fremont, except my fancy quilts and homemade counterpanes; these I wish divided between Hettie Bell Yel-verton, Lillian Wiggins, Serena Peacock and Flora Hooks, except one quilt which is to be Mary P. Farmer’s, provided himself and family, or family, live with, care for, and kindly treat me the remainder of my life, and seeing to it that I have a proper and suitable burial, otherwise the above statement is to be annulled.

One-half of all my other estate, both real and personal, I give, devise and bequeath in equal shares to the said Will T. Yelverton, and my uncle, H. F. Yelverton, their heirs and assigns forever.

All the rest, or other half, residue and remainder of my real and personal estate, I give, devise and bequeath to my heirs at law.

All just debts, all tombstone work and engraving and all other necessary expenses for my burial and burying ground must all be completed *616and paid for before any of my estate, either real or personal be divided or interfered with.

I appoint my said uncle, H. F. Yelverton, and the said Will T. Yel-verton executors of this my will and desire that they shall not be required to give any security for the performance of their duties.

In witness whereof, I, Mary Emma Aycock, have hereunto set my hand and seal this 8 January in the year of our Lord nineteen hundred and twenty. Mary Emma Aycock. (Seal.) Frank Watson, Cutler Lee.”

Codicil: “I, Mary Emma Aycock, of the town of Fremont, State of North Carolina, declare this to be the codicil to my will, and is my last will and testament.

The portion or share made in my will to my uncle, H. F. Yelverton (now deceased), I give, devise and bequeath in equal shares to his son, Will E. Yelverton and Lillian Wiggins, their heirs and assigns forever.

In witness whereof, I, Mary Emma Aycock, have hereunto set my hand and seal this 6 October, in the year of our Lord nineteen hundred and twenty-one. Mary Emma Aycock. (Seal.)”

The judgment of the court was as follows: “This cause coming on to be heard before his Honor, E. H. Cranmer, Judge Presiding, upon an agreed statement of facts, it is considered and adjudged by the court :

(1) That under the provision, ‘all the rest, or other half, residue and remainder of my real and personal estate, I give, devise and bequeath to my heirs at law,’ contained in the will of Mary Emma Aycock, all the rest, • or other half, residue and remainder of the 222-acre farm referred to in said agreed statement of facts, and- the proceeds of the sale thereof, pass to the next collateral relations, capable of inheriting, of the said Mary Emma Aycock, who are of the blood of her father, and also to the next collateral relations, capable of inheriting, of the said testatrix, who are of the blood of her mother. '

(2) That in the distribution of the proceeds of the rest, or other half, residue and remainder of the said Mary Emma Aycock’s real estate, Will T. Yelverton, Will E. Yelverton and Lillian Wiggins, the first half of the said real estate having been devised to them in a former item, and the said specific devises and bequests having been made to the said Will T. Yelverton, receive their proportionate part of the other half of said real estate.

(3) That in the distribution of the proceeds of the rest, or other half, residue and remainder of said Mary Emma Aycock’s personal estate, the said Will T. Yelverton, Will E. Yelverton and Lillian Wiggins, the first half of said personal estate having been bequeathed to them in a former item, and the said specific devises and bequests having been made to the said Will T. Yelverton, receive their proportionate part of the other half of the said personal estate.

*617It is further considered and adjudged by the court that the costs of this action be paid out of the fund arising from the sale of the said real estate.” E. H. CbaNmeb, Judge Presiding."

W. A. Finch and J. S. Manning for plaintiffs.

Diclcinson & Freeman and Langston, Allen & Taylor for defendants.

BROGDBN, J.

Two questions are presented for determination:

1st. "Who are the heirs at law of the testatrix, Mary Emma Aycock, with respect to the 222-acre farm, under the clause of the will devising “all the rest, or other half, residue and remainder of my real and personal estate, I give, devise and bequeath to my heirs at law?”

2d. Who are the heirs at law of the testatrix, Mary Emma Aycock, with respect to her personal property ?

The term “heirs at law,” so far as real estate is concerned, signifies those who would have taken or been entitled to the property had the testatrix died intestate; or, in other words, “an heir at law” is the one upon whom the law casts inheritance. Carroll v. Mfg. Co., 180 N. C., 367; Reid v. Neal, 182 N. C., 192. In order to answer the first question arising upon the record it is necessary to determine whether the “heirs at law” take by descent or by purchase under the will. If the heirs at law take by purchase under the will of the testatrix, then the judgment in this case is correct; but, if they take by descent, the judgment must be reversed.

The plaintiffs contend that the “heirs at law” would take as purchasers under the will, and therefore the next collateral relations of both the blood of the father and mother of the testatrix would take the property. What is purchase in law? “Purchase in law denotes the acquisition of an estate in lands by a man’s own agreement or act in contradistinction to acquisition by descent from an ancestor. The popular signification of the word purchase, i. e., to buy, falls far short of the comprehensive meaning given to the word by the law. If land be given <to a man by deed or will, in fee or in fee tail, he is a purchaser. But there is this distinction in the case of a gift by will: If the ancestor devised his whole estate to his heir at law in the identical manner in which it would have descended to the heir if no devise had been made, the heir takes by descent and not by purchase. But he must take the same estate and in the same subject-matter to come under the rule.” Mordecai’s Law Lectures, vol. 1, 648.

In the case of Campbell v. Herron, 1 N. C., 386, the Court holds that, “It is not doubted, but that if a person devises land to one who is his next heir, and his heirs, the devise is void, and the heir shall take by descent; or if a testator devise that his lands shall descend to his son, the devise is void, and the devisees shall be in by descent.”

*618In M’Kay v. Hendon, 7 N. C., 211, Taylor, C. J., says: “If a man devise bis land to bis beirs witbont changing tbe tenure or quality of tbe estate, tbe beirs are in by descent; and in all cases where they take tbe same estate by will, which they would have taken if tbe ancestor bad died intestate, tbe law is tbe same.”

In Wilkerson v. Bracken, 24 N. C., 315, Ruffin, G. J., says: “As tbe devise from John Bracken to bis daughter did not change tbe nature and quality of tbe estate, which she would have taken bad be died intestate, she took by descent and not by devise; according to tbe well-known preference of tbe common law for tbe title of descent.” Kiser v. Kiser, 55 N. C., 28.

In tbe case of Poisson v. Pettaway, 159 N. C., 650, Brown, J., plants tbe decision upon tbe Bracken case and states tbe principle thus: “At common law, a devisee who takes tbe same quality and nature of estate under tbe will as be would have taken by descent bad tbe testator died intestate, takes by descent, owing to tbe preference of tbe common law for tbe title of descent. Our statute puts a similar devise between such parties on tbe same footing with tbe descent.” Tbe Poisson case, supra, is cited with approval in Dixon v. Pender, 188 N. C., 792.

These decisions are referred to in order to show that for more than one hundred years it has been tbe law in this State that if a devisee under a will takes tbe same quality and nature of estate as be would have taken if tbe testator bad died intestate, be is in by descent and not by purchase.

But do tbe “beirs at law” referred to in tbe will of Mary Emma Aycock, take tbe same quality of estate and by tbe same tenure as if she bad died intestate? Black’s Law Die. defines tbe quality of an estate as follows: “Tbe period when, and tbe manner in which, tbe right of enjoying an estate is exercised. It is of two kinds: (1) Tbe period when tbe right of enjoying an estate is conferred upon tbe owner whether at present or in future; and (2), tbe manner in which tbe owner’s right of enjoyment of bis estate is to be exercised,t whether solely, jointly, in common, or in coparcenary.”

Tbe “beirs at law” of Mary Emma Aycock, under tbe devise in question, take a present estate in fee simple as tenants in common. If Mary Emma Aycock bad died intestate with respect to this particular farm, her heirs at law would take a present estate in fee simple as tenants in common. Therefore, tbe “beirs at law” of tbe testatrix, having taken under tbe devise tbe same quality of estate and tbe same tenure’that they would have taken if she bad died intestate, take by descent and not by purchase.

Now, if tbe “beirs at law” take by descent, certainly it must follow that tbe statute of descents would govern tbe devolution of tbe property. *619As it appears tbat tbe testatrix, Mary Emma Aycock, at tbe time of ber death, left ber surviving, no husband, nor lineal descendants, nor father, nor mother, nor brother, nor sister, nor issue of such, tbe fourth canon of descent would apply. This canon or rule is as follows: “On failure of lineal descendants, and where tbe inheritance has been transmitted by descent from an ancestor, or has derived by gift, devise or settlement from an ancestor, to whom tbe person thus advanced would, in tbe event of such ancestor’s death, have been tbe hejr or one of tbe heirs, tbe inheritance shall descend to tbe next collateral relations, capable of inheriting, of tbe person last seized, who were of tbe blood of such ancestor, subject to tbe two preceding rules.” Tbe reason for adopting tbe fourth canon is given by Gaston and appears on tbe Journal of tbe House of Commons of North Carolina in tbe proceedings bad on Friday, 8 December, 1808, and is thus stated: “Tbe fourth rule has for its principal object tbe securing to tbe family of tbe man, by whose industry tbe property was acquired, tbe enjoyment of such property, in preference to those who have no consanguinity with it.” Wilkerson v. Bracken, 24 N. C., 323.

Tbe record discloses tbat this farm in controversy descended to tbe testatrix, Mary Emma Aycock, from ber father, Jonathan T. Edgerton. Therefore, if Mary Emma Aycock bad died intestate, this farm would vest in ber heirs at law who were of tbe blood of such transmitting ancestor, to wit, Jonathan T. Edgerton. As tbe testatrix devised “all tbe rest, or other half, residue, and remainder” of ber real estate and personal property to ber “heirs at law,” then, of necessity, one-half of this farm would belong to and vest in, tbe answering defendants, who are tbe next collateral relations, capable of inheriting, of tbe said Mary Emma Aycock, who are of tbe blood of Jonathan T. Edgerton, tbe transmitting ancestor. As tbe land’ has been sold and converted into money, without prejudice, tbe proceeds would, in law, be deemed realty. Gillespie v. Foy, 40 N. C., 280.

Dean Mordecai, in bis Law Lectures, vol. 1, p. 648, points out an exception as follows: “Thus, if a man owns two tracts of land and devises one tract to A and tbe other tract to B—A and B being bis heirs— tbe rule does not apply.” This exception is based upon tbe case of Raiford v. Peden, 32 N. C., 466, in which Justice Pearson says: “If there be two coheirs and one tract of land is devised to one, and another tract to tbe other, they take by devise and not by descent, for under tbe devise each has an estate in severalty in tbe respective tracts; whereas, by descent, each would have bad an undivided moiety in tbe whole.” Sheph. Touchstone, 451. But this exception does not apply to tbe case now under consideration, because one-half of tbe residuary estate, including tbe farm, is given-to Will T. Yelverton, Will E. Yel-*620verton and Lillian Wiggins, and “the rest, or other half” is given to the “heirs at law” of the testatrix. The “heirs at law,” therefore, would have an undivided moiety in said farm with the devisees named.

The plaintiffs rely upon the case of Kirkman v. Smith, 174 N. C., 603. The devisor in that case was D. W. Flow, and the devise was “to Margaret G. Kirkman . . . to be hers, her lifetime, and then to go to Guy Kirkman and Marvin Kirkman, and if they should die without any bodily heirs, the said land to go back to the Flow heirs.” Marvin Kirkman died intestate and unmarried, leaving no issue or lineal descendants. Guy Kirkman married and had children. Margaret Kirkman and Guy Kirkman made a contract to sell the land to defendants, who refused to take it upon the ground that the said plaintiffs could not convey an absolute title in fee simple. Justice Walker held that rule four of the Canons and Descent had. no application for the reason that “said rule is confined to cases where there is no othei disposition of the property by will which would interfere with the prescribed course of descent.” This reasoning is sound and correct because the will devised the property to the Flow heirs upon the contingency that the Kirkmans should die without any bodily heirs. This devise, therefore, interfered with the prescribed course of descent, and hence the devisees thereunder took by purchase.

Our case is essentially different, and the principle enunciated in Kirkman v. Smith does not apply.

We hold, therefore, that as to “all the rest, or other half,” “residue and remainder,” the “heirs at law” who are the blood of Jonathan T. Edgerton, would be entitled to one-half of the net proceeds of said farm.

It appears that there was certain personal property undisposed of. The “heirs at law,” with respect to personal property would be her next of kin as designated by the statute of distribution. Everett v. Griffin, 174 N. C., 106.

Reversed.