{
  "id": 8625542,
  "name": "WILL T. YELVERTON et al. v. WILL E. YELVERTON et al.",
  "name_abbreviation": "Yelverton v. Yelverton",
  "decision_date": "1926-12-01",
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  "first_page": "614",
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  "provenance": {
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    "parties": [
      "WILL T. YELVERTON et al. v. WILL E. YELVERTON et al."
    ],
    "opinions": [
      {
        "text": "BROGDBN, J.\nTwo questions are presented for determination:\n1st. \"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 \u201call the rest, or other half, residue and remainder of my real and personal estate, I give, devise and bequeath to my heirs at law?\u201d\n2d. Who are the heirs at law of the testatrix, Mary Emma Aycock, with respect to her personal property ?\nThe term \u201cheirs at law,\u201d 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, \u201can heir at law\u201d 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 \u201cheirs at law\u201d 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.\nThe plaintiffs contend that the \u201cheirs at law\u201d 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? \u201cPurchase in law denotes the acquisition of an estate in lands by a man\u2019s 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.\u201d Mordecai\u2019s Law Lectures, vol. 1, 648.\nIn the case of Campbell v. Herron, 1 N. C., 386, the Court holds that, \u201cIt 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.\u201d\nIn M\u2019Kay v. Hendon, 7 N. C., 211, Taylor, C. J., says: \u201cIf 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.\u201d\nIn Wilkerson v. Bracken, 24 N. C., 315, Ruffin, G. J., says: \u201cAs 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.\u201d Kiser v. Kiser, 55 N. C., 28.\nIn tbe case of Poisson v. Pettaway, 159 N. C., 650, Brown, J., plants tbe decision upon tbe Bracken case and states tbe principle thus: \u201cAt 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.\u201d Tbe Poisson case, supra, is cited with approval in Dixon v. Pender, 188 N. C., 792.\nThese 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.\nBut do tbe \u201cbeirs at law\u201d 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\u2019s Law Die. defines tbe quality of an estate as follows: \u201cTbe 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\u2019s right of enjoyment of bis estate is to be exercised,t whether solely, jointly, in common, or in coparcenary.\u201d\nTbe \u201cbeirs at law\u201d 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 \u201cbeirs at law\u201d of tbe testatrix, having taken under tbe devise tbe same quality of estate and tbe same tenure\u2019that they would have taken if she bad died intestate, take by descent and not by purchase.\nNow, if tbe \u201cbeirs at law\u201d take by descent, certainly it must follow that tbe statute of descents would govern tbe devolution of tbe property. As 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: \u201cOn 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\u2019s 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.\u201d 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: \u201cTbe 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.\u201d Wilkerson v. Bracken, 24 N. C., 323.\nTbe 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 \u201call tbe rest, or other half, residue, and remainder\u201d of ber real estate and personal property to ber \u201cheirs at law,\u201d 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\u2019 has been sold and converted into money, without prejudice, tbe proceeds would, in law, be deemed realty. Gillespie v. Foy, 40 N. C., 280.\nDean Mordecai, in bis Law Lectures, vol. 1, p. 648, points out an exception as follows: \u201cThus, if a man owns two tracts of land and devises one tract to A and tbe other tract to B\u2014A and B being bis heirs\u2014 tbe rule does not apply.\u201d This exception is based upon tbe case of Raiford v. Peden, 32 N. C., 466, in which Justice Pearson says: \u201cIf 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.\u201d 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-verton and Lillian Wiggins, and \u201cthe rest, or other half\u201d is given to the \u201cheirs at law\u201d of the testatrix. The \u201cheirs at law,\u201d therefore, would have an undivided moiety in said farm with the devisees named.\nThe 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 \u201cto 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.\u201d 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 \u201csaid 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.\u201d 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.\nOur case is essentially different, and the principle enunciated in Kirkman v. Smith does not apply.\nWe hold, therefore, that as to \u201call the rest, or other half,\u201d \u201cresidue and remainder,\u201d the \u201cheirs at law\u201d who are the blood of Jonathan T. Edgerton, would be entitled to one-half of the net proceeds of said farm.\nIt appears that there was certain personal property undisposed of. The \u201cheirs at law,\u201d 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.\nReversed.",
        "type": "majority",
        "author": "BROGDBN, J."
      }
    ],
    "attorneys": [
      "W. A. Finch and J. S. Manning for plaintiffs.",
      "Diclcinson & Freeman and Langston, Allen & Taylor for defendants."
    ],
    "corrections": "",
    "head_matter": "WILL T. YELVERTON et al. v. WILL E. YELVERTON et al.\n(Filed 1 December, 1926.)\nWills' \u2014 Devise\u2014Lands\u2014Estates\u2014\u201cHeirs at Law\u201d \u2014 Descent and Distribution \u2014 Personalty.\nWhere 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 \u201cheirs at law,\u201d 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\u2019s side. As to personalty so devised, the next . of kin would take under the statute of distribution.\nCivil actioN, before Granmer, J., at August Term, 1926, of WayNE.\nThe 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:\n1. Mary Emma Aycock died in Wayne County on 14 February, 1925, leaving a last will and testament, which, together with \u25a0 the codicil thereto, was duly admitted to probate and admitted to be the last will and testament of said testatrix.\n2. 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.\n3. 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.\n4. 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.\n5. 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.\nTbe will of Mary Emma Ayeock is as follows: \u201cI, Mary Emma Aycock, of tbe town of Fremont, State of N. Carolina, declare tbis to be my last will and testament.\nAt 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.\nI 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\u2019s Crossing, about one-half mile, more or less, on east side pf W. & W. E. E., my husband\u2019s 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.\nI 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\u2019s, 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.\nOne-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.\nAll the rest, or other half, residue and remainder of my real and personal estate, I give, devise and bequeath to my heirs at law.\nAll just debts, all tombstone work and engraving and all other necessary expenses for my burial and burying ground must all be completed and paid for before any of my estate, either real or personal be divided or interfered with.\nI 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.\nIn 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.\u201d\nCodicil: \u201cI, 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.\nThe 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.\nIn 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.)\u201d\nThe judgment of the court was as follows: \u201cThis 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 :\n(1) That under the provision, \u2018all the rest, or other half, residue and remainder of my real and personal estate, I give, devise and bequeath to my heirs at law,\u2019 contained in the will of Mary Emma Aycock, all the rest, \u2022 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. '\n(2) That in the distribution of the proceeds of the rest, or other half, residue and remainder of the said Mary Emma Aycock\u2019s 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.\n(3) That in the distribution of the proceeds of the rest, or other half, residue and remainder of said Mary Emma Aycock\u2019s 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.\nIt 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.\u201d E. H. CbaNmeb, Judge Presiding.\"\nW. A. Finch and J. S. Manning for plaintiffs.\nDiclcinson & Freeman and Langston, Allen & Taylor for defendants."
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