{ "id": 2217752, "name": "GARNETT JONES WELCH et al. v. CHARLES GIBSON et al.", "name_abbreviation": "Welch v. Gibson", "decision_date": "1927-05-11", "docket_number": "", "first_page": "684", "last_page": "691", "citations": [ { "type": "official", "cite": "193 N.C. 684" } ], "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": "182 N. C., 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655644 ], "opinion_index": 0, "case_paths": [ "/nc/182/0192-01" ] }, { "cite": "181 N. C., 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655500 ], "opinion_index": 0, "case_paths": [ "/nc/181/0158-01" ] }, { "cite": "180 N. C., 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654066 ], "opinion_index": 0, "case_paths": [ "/nc/180/0535-01" ] }, { "cite": "158 N. C., 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655395 ], "opinion_index": 0, "case_paths": [ "/nc/158/0344-01" ] }, { "cite": "115 N. C., 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651288 ], "opinion_index": 0, "case_paths": [ "/nc/115/0068-01" ] }, { "cite": "46 N. H., 454", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4466340 ], "opinion_index": 0, "case_paths": [ "/nh/46/0454-01" ] }, { "cite": "145 N. C., 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253092 ], "year": 1784, "opinion_index": 0, "case_paths": [ "/nc/145/0283-01" ] }, { "cite": "95 N. C., 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274213 ], "year": 1784, "opinion_index": 0, "case_paths": [ "/nc/95/0362-01" ] }, { "cite": "40 N. C., 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2101506 ], "year": 1784, "opinion_index": 0, "case_paths": [ "/nc/40/0400-01" ] }, { "cite": "15 N. C., 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276667 ], "opinion_index": 0, "case_paths": [ "/nc/15/0376-01" ] }, { "cite": "179 N. C., 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/179/0307-01" ] }, { "cite": "192 N. C., 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624470 ], "opinion_index": 0, "case_paths": [ "/nc/192/0505-01" ] }, { "cite": "172 N. C., 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255017 ], "opinion_index": 0, "case_paths": [ "/nc/172/0628-01" ] }, { "cite": "144 N. C., 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658935 ], "opinion_index": 0, "case_paths": [ "/nc/144/0121-01" ] }, { "cite": "132 N. C., 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657775 ], "opinion_index": 0, "case_paths": [ "/nc/132/0115-01" ] }, { "cite": "169 N. C., 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657550 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/169/0228-01" ] }, { "cite": "191 N. C., 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629760 ], "opinion_index": 0, "case_paths": [ "/nc/191/0453-01" ] }, { "cite": "192 N. C., 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625542 ], "opinion_index": 0, "case_paths": [ "/nc/192/0614-01" ] }, { "cite": "186 N. C., 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654027 ], "opinion_index": 0, "case_paths": [ "/nc/186/0510-01" ] }, { "cite": "189 N. C., 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654415 ], "opinion_index": 0, "case_paths": [ "/nc/189/0452-01" ] }, { "cite": "67 Am. Dec., 447", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "27 Pa. St., 95", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 979412 ], "opinion_index": 0, "case_paths": [ "/pa/27/0095-01" ] }, { "cite": "159 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656217 ], "opinion_index": 0, "case_paths": [ "/nc/159/0001-01" ] }, { "cite": "173 N. C., 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269189 ], "opinion_index": 0, "case_paths": [ "/nc/173/0124-01" ] }, { "cite": "13 Pa. St., 344", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 964948 ], "opinion_index": 0, "case_paths": [ "/pa/13/0344-01" ] }, { "cite": "192 N. C., 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625647 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/192/0630-01" ] }, { "cite": "163 N. C., 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271448 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/163/0241-01" ] }, { "cite": "184 N. C., 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268876 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nc/184/0013-01" ] }, { "cite": "174 N. C., 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252533 ], "opinion_index": 0, "case_paths": [ "/nc/174/0088-01" ] }, { "cite": "176 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654865 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/176/0001-01" ] }, { "cite": "187 N. C., 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654368 ], "opinion_index": 0, "case_paths": [ "/nc/187/0535-01" ] }, { "cite": "30 Am. Dec., 400", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "9 Yerg., 209", "category": "reporters:state", "reporter": "Yer.", "case_ids": [ 8541894 ], "opinion_index": 0, "case_paths": [ "/tenn/17/0209-01" ] }, { "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" ] }, { "cite": "117 N. C., 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653538 ], "opinion_index": 0, "case_paths": [ "/nc/117/0497-01" ] }, { "cite": "139 N. C., 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652534 ], "opinion_index": 0, "case_paths": [ "/nc/139/0314-01" ] } ], "analysis": { "cardinality": 902, "char_count": 22048, "ocr_confidence": 0.472, "pagerank": { "raw": 3.499624401923782e-07, "percentile": 0.8827136253889706 }, "sha256": "9dca33da7dd82f7710a9eb20ccf8631157ee2d3c8d72fb675c08e98285b72643", "simhash": "1:ff6c9e3209066cab", "word_count": 4067 }, "last_updated": "2023-07-14T17:08:43.639996+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GARNETT JONES WELCH et al. v. CHARLES GIBSON et al." ], "opinions": [ { "text": "Stacy, C. J.\nOn the hearing the sufficiency of the title offered was properly made to depend upon the construction of the following provision in the will of Mary M. Kennedy:\n\u201cI will and bequeath to my daughter, Garnette Jones Welch, all of my property, both personal and real, for the term of her natural life, and at the death of my said daughter, Mrs. Welch, all this property so devised shall go to the bodily heirs of Mrs. Welch, and to go as entailed property for succeeding generations; all living children at the death of the said Mrs. Welch are to have an equal share in this property during the term of their lives, and shall go to the heirs of these said legatees from generation to generation forever. No wood shall be sold off this place, and only such wood shall be cut during the lifetime.of the said Mrs. Welch,, or the minority of her youngest children, only so much as may be necessary for firewood for the house and for the cooking stove.\u201d\nThe fact situation is that Mary M. Kennedy died testate in 1914, leaving.an only daughter, Mrs. Garnett Jones Welch, coplaintiff with her husband herein, who now has seven living children, four of whom are infants, and none of whom are parties to this controversy, save the defendant, Mary S. Hager, who was made a party at her own request, and'who claims an interest in the land under her grandmother\u2019s will.\nThe plaintiffs claim that Mrs. Garnett Jones Welch acquired a fee-simple title to all her mother\u2019s real estate under the above provision of her will, and that the deed tendered is sufficient to convey a good and indefeasible fee-simple title to the lot described therein, while the defendant, Charles Gibson, as well as his codefendant, Mary S. Hager, contends that the feme plaintiff, \u2022 under the above provision of her mother\u2019s will, takes only a life estate in the property so devised.\nIt is conceded that the relative merits of the controversy depend upon whether or not the limitations in the above clause of the will of Mary M. Kennedy to the heirs or heirs of the body of her daughter, Mrs. Gar-nett Jones Welch, are so framed as to attract the rule announced in the celebrated English case of Wolfe v. Shelley, 1 Coke, 93b, commonly known as the rule in Shelley's case, which, with us, has become a rule of property as well as a rule of law, and is stated by Mr. Preston, an eminent English authority, as abridged by Chancellor Kent in his Commentaries (4 Kent Com., 215), as follows: \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 the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.\u201d 1 Prest. Est., 263. This definition was quoted with approval in Smith v. Proctor, 139 N. C., 314.\nThe origin o\u00a3 the rule, as well as the wisdom of its adoption, has been the subject of much curious and learned speculation. Though found among the remains of feudality, it is neither a relic of barbarism nor a part of the rubbish of the dark ages, but rather a Gothic column, as it were, which has been preserved to aid in sustaining the fabric of our modern social system. Nicholson v. Gladden, 117 N. C., 497; Starnes v. Hill, 112 N. C., 1; Note, 29 L. R. A. (N. S.), 963; Daniel v. Bass, ante, 294; Foley v. Ivey, ibid., 453; Polk v. Faris, 9 Yerg., 209; 30 Am. Dec., 400. It prevents the tying up of real estate during the life of the first taker, facilitates its alienation a generation earlier, and at the same time subjects it to the payment of. the debts of the ancestor. It also favors dower. Walker v. Butner, 187 N. C., 535; Crisp v. Biggs, 176 N. C., 1; Cohoon v. Upton, 174 N. C., 88.\nThe effect of the rule, when it applies, is simply this: By force of the limitation to the ancestor\u2019s heirs, general or special, the rule in Shelley\u2019s case operates to give to the first taker, who already has an estate of freehold in the land, the inheritance also, by conferring the remainder on him, as the stock from which alone the heirs can inherit, and the source alone from which their inheritable blood can spring. Hampton v. Griggs, 184 N. C., 13; Jones v. Whichard, 163 N. C., 241.\nIt is said by many writers on the subject that the limitation to the heirs unites and coalesces with the limitation of the freehold in the ancestor, and thus operates to vest in the first taker a fee simple or a fee tail, as the case may be, divided or split by intervening limitations, where there are any. Benton v. Baucom, 192 N. C., 630. Thus, a gift or a grant to one for life, with remainder to his heirs, gives him a fee simple in possession by the merger of his life estate in the inheritance. But a gift or grant to one for life, remainder to another for life, remainder to the heirs of the first taker, gives to the first taker an estate for life in possession, with a fee simple in expectancy \u2014 a merger in this case being prevented by the intermediate life estate. Hileman v. Bouslaugh, 13 Pa. St., 344. In such case, however, the ancestor or first taker may deal with the property as full owner thereof, subject only to the intervening life estate and its incidents. Smith v. Smith, 173 N. C., 124; Cotten v. Moseley, 159 N. C., 1.\nA donor or grantor is no more competent to make a tenancy for life a source of inheritable succession than he is competent to create a perpetuity, or a new canofi of descent; and the rule is too intimately connected with the doctrine of estates to be separated from it without breaking the ligaments of property. Benton v. Baucom, 192 N. C., 630; Crisp v. Biggs, supra. It is one of the ancient landmarks which the fathers have set in the law as it relates to the subject of real property. Hampton v. Griggs, supra.\nMr. Tiffany, in his valuable treatise on Real Property, vol. 1 (2 ed.), 529, gives a practical statement of the rule, and discusses its application to various illustrative cases, citing numerous authorities in support of the text, as follows:\n\u201cIf, after the limitation of a particular estate of freehold in favor of a person, a remainder is limited in favor of his heirs, or the heirs of his body, such person will take an estate in remainder in fee simple or fee tail, according as the limitation in remainder is in favor of his heirs or the heirs of his body, and the particular estate will merge therein, unless another estate be interposed between the particular estate and the remainder.\n\u201cIn the case of a limitation to A. for life, with remainder to his heirs or to the heirs of his body, which is the typical form calling for an application of the rule in Shelley's case, the effect of the rule, it would seem, as above indicated, is not to operate directly upon the life estate in A., but to give to the remainder the effect of a gift to A., the whole limitation taking effect as if it were to A. for life, with remainder to A. and his heirs, or to A. and the heirs of his body. In the remainder in fee or in tail thus vested in A., the estate limited to him for life will merge, and he will consequently take a fee simple or fee tail in possession, while the heirs or heirs of the body will take nothing.\n\u201cIf, to take another case, the remainder to the heirs or heirs of the body is conditioned on some event, as in the cas\u00e9 of a limitation to A. for life, with remainder, if A. shall survive B., to A.\u2019s heirs, or the heirs of his body, A. then has an estate for life, and a remainder in fee or in tail conditioned on his survival of B. In such case, the remainder in favor of A. and his heirs being contingent, the particular estate will not merge therein, but, upon the vesting of the remainder by the death of B. before A., merger will take place, and A. will have, as in the previous case, an estate in fee simple or fee tail in possession.\n\u201cIf there is an intermediate estate interposed between the life estate in the ancestor and the remainder to the heirs, as in the case of a limitation to A. for life, remainder to B. for life or in tail, remainder to the heirs of A., or to the heirs of A.\u2019s body, A. will then have a remainder in fee or in tail, as in the previous cases. The vested remainder in B., however, interposed between A.\u2019s life estate and his remainder in fee or in tail, will prevent the merger of the life estate in the remainder. In such case, if the remainder in B. should terminate before the end of A.\u2019s life estate, this latter will then merge in the fee simple or fee tail of A. If the remainder interposed in favor of B. is a contingent and not a vested remainder, while A.\u2019s life estate and his remainder in fee or in tail are united in him, the former is not absolutely merged in the latter, and they become separated upon the vesting of P.\u2019s estate.\n\u201cThe application of the rule is not affected by the presence of a power of appointment, the exercise of which would destroy the limitation in favor of the heirs or heirs of the body. Eor instance, in the case of a devise to A. for life, with power to convey in fee simple, and after A.\u2019s death to A.\u2019s heirs, the rule will apply to the same extent as if no power had been given to A.\n\u201cThe particular estate-in the ancestor and the remainder in favor of the heirs must arise under the same instrument, and so the rule will not apply; for instance, when A., being tenant for life, with remainder to the heirs of B., conveys his life estate to B. The opinion has been expressed that an estate created by the exercise of a power contained in the instrument by which the particular estate is created, is to be regarded as arising under the same instrument for the purposes of this requirement. This opinion has, however, been questioned.\n\u201cThe rule does not apply, it has been decided, if the limitation by way of remainder is to the heirs of the body of both the donee of the particular estate and of another person, as when there is a gift to a man for life, with remainder to the heirs of the bodies of such man and his present wife. This is not the same as a gift to a man with remainder to the heirs of the body of such man by his present wife, since in the former case the heirs are to be ascertained upon the death of the last survivor of the husband and wife, while in the latter case they are to be ascertained upon the death of the husband. In the latter case the rule would apply.\n\u201cThe rule has been held to apply in the case of a limitation by devise in favor of the \u2018heir\u2019 or Feir male,\u2019 in the singular' number, of the person first named, as well as when in favor of his heirs or heirs of the body.\u201d\n' In the case at bar, the devise is to the plaintiff for the term of her natural life, and at her death it is provided that all the property so devised \u201cshall go to the bodily heirs of Mrs. Welch, and to go as' entailed property for succeeding generations.\u201d Had the will stopped here, under all the decisions, a typical case for the application of the rule would have been presented, for, as said by Black, J., in Steacy v. Rice, 27 Pa. St., 95; 67 Am. Dec., 447, \u201cthe law will not treat that as an estate for life which is essentially an estate of inheritance, nor permit anyone to take in the character of heir unless he take also in the quality of heir.\u201d Hartman v. Flynn, 189 N. C., 452; Bank v. Dortch, 186 N. C., 510. In other words, an heir is one upon whom the law casts an estate at the death of the ancestor (II Blackstone, ch. 14), and as it is necessary to consult the law to find out who the heir of the ancestor is, the law, speaking through the rule in Shelley's case, in substance, says: \u201cHe who would thus take in the character of heir must take also in the quality of heir; that is, as heir by descent under the law and not by purchase under the instrument.\u201d Yelverton v. Yelverton, 192 N. C., 614. But immediately the testatrix added: \u201cAll living children at the death of the said Mrs. Welch are to have an equal share in this property during the terms of their lives.\u201d From this limitation, it would seem that the testatrix intended to vest in the children of Mrs. Welch, living at her death, in equal shares, contingent remainders in the property, thus taking the case out of the operation of the rule, so far as the devise to the plaintiff is concerned. Williams v. Sasser, 191 N. C., 453; Haar v. Schloss, 169 N. C., 228; May v. Lewis, 132 N. C., 115; Sessoms v. Sessoms, 144 N. C., 121. And while in the first instance she apparently used the words \u201cbodily heirs\u201d in a technical sense (Blake v. Shields, 172 N. C., 628), yet, in the very next clause, it clearly appears, we think, that she had in mind the children or issue of her daughter, Garnett Jones Welch, living at her death, who were to take per capita and not per stirpes. Burton v. Cahill, 192 N. C., 505; Pugh v. Allen, 179 N. C., 307.\nIt has been held in England, ever since the leading case of Wright v. Jesson, in the House of Lords, 2 Bligh., 2, which overruled Doe v. Wright, in the King\u2019s Bench, 5 M. and S., 95, that the words \u201cequally to be divided,\u201d or \u201cshare and share alike,\u201d superadded to the limitation to the heirs, or to heirs of the body, do not prevent the application of the rule, and such was declared to be the law of this State in Ross v. Toms, 15 N. C., 376, a case decided prior to the Act of 1784, now C. S., 1734. But in Ward v. Jones, 40 N. C., 400, decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N. C., 362, Gilmore v. Sellers, 145 N. C., 283, and Haar v. Schloss, 169 N. C., 228, it was held \u201cthat in all devises of land, made since that time (1784), the words 'to be equally divided\u2019 prevent the applichtion of the rule in Shelley\u2019s case, and that the first taker has only an estate for life.\u201d Further animadverting on the subject, Pearson, J., delivering the opinion of the Court, said: \u201cThe rule in Shelley\u2019s case only applies when the same persons will take the same estate, whether they take by descent or purchase; in which case they are made to take by descent, it being more favorable to dower, to the feudal incidents of seigniories, and to the rights of creditors, that the first taker should have an estate of inheritance; but when the persons taking by purchase would be different, or have different estates than they would take by descent from the first taker, the rule does not apply, and the first taker is confined to an estate for life, and the heirs, heirs of the body, or issue in wills, take as purchasers. The words 'to be equally divided between the issue\u2019 take in different persons than simply the word 'issue,\u2019 used as a word of descent; for, in the latter case, the person or persons to take would be ascertained by the rules of descent \u2014 there would be representation \u2014 and the taking would be per stirpes; while in the former the rules of descent would have no application, and there must be an equal division per capita. Hence, the use of these words prevents the application of The rule/ and the first taker has but an estate for life, except in cases where there is some paramount intent which would be defeated unless the first taker be entitled to an estate of inheritance.\u201d\nThe sense in which the words \u201cheirs\u201d or \u201cheirs of the body\u201d are employed, 'whether technical or other, is the controlling factor in determining the applicability or nonapplicability of the rule in Shelley\u2019s case. Hampton v. Griggs, supra. \u201cIn determining whether the rule in Shelley\u2019s case shall apply, it is not material to inquire what the intention of the testator was as to the quantity of estate that should vest in the first taker. The material inquiry is, What is taken under the second devise? If those who take under the second devise take the same estate they would take as heirs or heirs of his body, the rule applies\u201d; otherwise, not. Crockett v. Robinson, 46 N. H., 454.\nIn the first limitation to the bodily heirs of Mrs. Welch it is provided that the estate shall go as \u201centailed property,\u201d while in the ulterior limitation it is apparently released from its character as entailed property and limited generally to the \u201cheirs of these said legatees.\u201d The will was drawn by a justice of the peace, who, it seems, according to the contention of the defendant, \u201coverspoke himself,\u201d or got lost in a multiplicity of words. At least, his arrangement of legal expressions has had a puzzling effect upon those who have been asked to find out their meaning, when so arranged, and to advise accordingly. \u201cA little learning is a dangerous thing,\u201d says-Pope, which properly interpreted means that expert knowledge in the hands of an inexpert is a dangerous thing. And so it is. But in the language of Huxley, \u201cIf a little knowledge is dangerous, where is a man who has so much as to be out of danger\u201d when he is dealing with the rule in Shelley\u2019s case? Or forsooth did the student answer with a correct guess, widen, on being asked the meaning of the rule, he said: \u201cThe rule in Shelley\u2019s case is very simple if you understand it. It means that the same law which was applied in that case applies equally to every other case just like it.\u201d? And so it does. But when is a case \u201cjust like it,\u201d or so nearly so as to come within the operation of the rule? That is the puzzling question.\nAppellees further point out that the will contains a prohibition against selling wood from the place during the lifetime of Mrs. Welch, which, they say, shows a clear intent on the part of the testatrix that the first devise should be limited to a life estate. 2 Minor\u2019s Institutes, 400, el seq.\nThe cases of Rollins v. Keel, 115 N. C., 68, Puckett v. Morgan, 158 N. C., 344, Jones v. Whichard, 163 N. C., 241, Pugh v. Allen, 179 N. C., 307, Blackledge v. Simmons, 180 N. C., 535, Wallace v. Wallace, 181 N. C., 158, Reid v. Neal, 182 N. C., 192, and Hampton v. Griggs, 184 N. C., 13, are cited as supporting, in tendency at least, tbe judgment entered in tbe court below. Tbe distinction between tbis line of cases, in wbicb tbe rule bas been beld not to be applicable to tbe limitations appearing therein, and tbe long line of decisions in wbicb it bas been beld to be applicable and firmly established as tbe law of tbis jurisdiction, was first pointed out in Pugh v. Allen, supra, and repeated in Hampton v. Griggs, supra, substantially as follows: When there is an ulterior limitation wbicb provides that upon tbe happening of a given contingency, tbe estate is to be taken out of tbe first lines of descent and then put back into tbe same line, in a restricted manner, by giving it to some, but not to all, of those who presumptively would have shared in tbe estate as being potentially among tbe heirs general of tbe first taker, tbis circumstance may be used as one of tbe guides in ascertaining tbe paramount intention of tbe testator, and, with other indicia, it bas been beld sufficient to show that tbe words \u201cheirs\u201d or \u201cheirs of tbe body\u201d were not used in their technical sense. Herein lies tbe distinction between tbe cases above mentioned and Benton v. Baucom, 192 N. C., 630, for in tbis latter case, tbe ulterior limitation was to tbe testator\u2019s own three children by a former marriage, who were not among tbe heirs general of bis stepdaughter, tbe first taker, for she was tbe daughter of testator\u2019s second wife by a prior marriage, a circumstance not fully elaborated in that case.\nAs tbe judgment appears to be correct, it is approved.\nAffirmed.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Preston & Boss for -plaintiffs.", "No counsel appearing for defendant, Charles Gibson.", "F. R. McNinch for defendants, Mary S. Pagar and A. B. Pager." ], "corrections": "", "head_matter": "GARNETT JONES WELCH et al. v. CHARLES GIBSON et al.\n(Filed 11 May, 1927.)\n1. Estates \u2014 Wills\u2014Devise\u2014Rule in Shelley\u2019s Case \u2014 Contingent Remainders \u2014 Life Estates.\nAn estate to the testatrix\u2019s daughter for the term of her natural life, and at her death to her bodily heirs as entailed from generation to generation, further qualified so that the living children at the death of the first taker shall share equally: Held, those taking under the further limitation do not take as her heirs or the heirs of the ancestor, and interpose a life estate with a contingent limitation over to such of the children living at her death per capita and not per stirpes, and prevents the application of the rule in Shelley\u2019s case giving the first taker during her life having living children an absolute fee-simple title.\n2. Same \u2014 \u201cHeirs.\u201d\nIn order for the application of the rule in Shelley\u2019s case the limitation over to the heirs of the body under a devise must be such heirs as would take (except for the intervention of our statute, C. S., 1734), under the law by descent in the class designated by the will, and where there is a contingent limitation over to those who would take a different estate not per stirpes, or as a class different from heirs, the two estates will not merge during the life of the first taker so that he can convey the fee-simple absolute title.\nAppeal by plaintiffs from Finley, J., at April Term, 1927, of Mecklenburg.\nControversy without action submitted on an agreed statement of facts.\nPlaintiffs, being under contract to convey a certain lot of land to the defendant, Charles Gibson, duly executed and tendered a deed therefor and demanded payment of the purchase price as agreed, but the said defendant declines to accept the deed and refuses to make payment of the balanc\u00e9 of the purchase price, claiming that the title offered is defective.\nIt was agreed that if, in the opinion of the court, under the facts submitted, the plaintiffs were able to convey a good and indefeasible fee-simple title to the lot in question, judgment should be entered for the plaintiffs, otherwise for the defendant.\nThe court, being of opinion that the plaintiffs were not able to convey a good and sufficient fee-simple title, gave judgment for the defendant, from which the plaintiffs appeal, assigning error.\nPreston & Boss for -plaintiffs.\nNo counsel appearing for defendant, Charles Gibson.\nF. R. McNinch for defendants, Mary S. Pagar and A. B. Pager." }, "file_name": "0684-01", "first_page_order": 762, "last_page_order": 769 }