{ "id": 8615704, "name": "IRENE GREEN WILLIAMSON, Sometimes Called MARY WILLIAMSON, Widow of HENRY W. WILLIAMSON, Deceased, et al., v. ELLEN W. COX and Husband, DAVE COX", "name_abbreviation": "Williamson v. Cox", "decision_date": "1940-09-25", "docket_number": "", "first_page": "177", "last_page": "184", "citations": [ { "type": "official", "cite": "218 N.C. 177" } ], "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": "45 N. C., 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683638 ], "opinion_index": 0, "case_paths": [ "/nc/45/0029-01" ] }, { "cite": "83 S. E., 25", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "167 N. C., 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271288 ], "opinion_index": 0, "case_paths": [ "/nc/167/0053-01" ] }, { "cite": "106 S. E., 501", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 S. E., 610", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N. C., 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597609 ], "opinion_index": 0, "case_paths": [ "/nc/208/0141-01" ] }, { "cite": "16 S. E., 1011", "category": "reporters:state_regional", "reporter": "S.E.", "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": "194 S. E., 100", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1739, "opinion_index": 0 }, { "cite": "212 N. C., 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616986 ], "year": 1739, "opinion_index": 0, "case_paths": [ "/nc/212/0651-01" ] }, { "cite": "72 S. E., 1", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1739, "opinion_index": 0 }, { "cite": "156 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269882 ], "year": 1739, "opinion_index": 0, "case_paths": [ "/nc/156/0001-01" ] }, { "cite": "71 S. E., 445", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1739, "opinion_index": 0 }, { "cite": "155 N. C., 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652518 ], "year": 1739, "opinion_index": 0, "case_paths": [ "/nc/155/0389-01" ] }, { "cite": "28 S. E., 489", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1739, "opinion_index": 0 }, { "cite": "121 N. C., 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653126 ], "opinion_index": 0, "case_paths": [ "/nc/121/0326-01" ] }, { "cite": "20 S. E., 724", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "115 N. C., 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652357 ], "opinion_index": 0, "case_paths": [ "/nc/115/0540-01" ] }, { "cite": "58 N. C., 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690268 ], "opinion_index": 0, "case_paths": [ "/nc/58/0231-01" ] }, { "cite": "57 N. C., 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2083008 ], "opinion_index": 0, "case_paths": [ "/nc/57/0441-01" ] }, { "cite": "20 N. C., 207", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "40 N. C., 6", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "105 S. E., 202", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "180 N. C., 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654066 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/180/0535-01" ] }, { "cite": "48 S. E., 581", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "136 N. C., 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658941 ], "opinion_index": 0, "case_paths": [ "/nc/136/0130-01" ] }, { "cite": "133 S. E., 168", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N. C., 802", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631702 ], "opinion_index": 0, "case_paths": [ "/nc/191/0802-01" ] }, { "cite": "135 S. E., 121", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "192 N. C., 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622610 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/192/0398-01" ] }, { "cite": "60 S. E., 909", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "147 N. C., 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269054 ], "opinion_index": 0, "case_paths": [ "/nc/147/0111-01" ] }, { "cite": "108 S. E., 769", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N. C., 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655644 ], "opinion_index": 0, "case_paths": [ "/nc/182/0192-01" ] }, { "cite": "38 S. E., 858", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "128 N. C., 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659650 ], "opinion_index": 0, "case_paths": [ "/nc/128/0256-01" ] }, { "cite": "20 S. E., 209", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "115 N. C., 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651288 ], "opinion_index": 0, "case_paths": [ "/nc/115/0068-01" ] }, { "cite": "21 S. E., 175", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "116 N. C., 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655013 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/116/0518-01" ] }, { "cite": "102 S. E., 394", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N. C., 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655802 ], "opinion_index": 0, "case_paths": [ "/nc/179/0307-01" ] }, { "cite": "113 S. E., 501", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N. C., 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268876 ], "opinion_index": 0, "case_paths": [ "/nc/184/0013-01" ] }, { "cite": "79 S. E., 503", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "163 N. C., 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271448 ], "opinion_index": 0, "case_paths": [ "/nc/163/0241-01" ] }, { "cite": "74 S. E., 15", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "158 N. C., 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655395 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/158/0344-01" ] }, { "cite": "180 S. E., 579", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N. C., 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605732 ], "opinion_index": 0, "case_paths": [ "/nc/208/0338-01" ] }, { "cite": "58 N. C., 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693765 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/58/0351-01" ] }, { "cite": "111 S. E., 163", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N. C., 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655988 ], "opinion_index": 0, "case_paths": [ "/nc/183/0267-01" ] }, { "cite": "104 S. E., 892", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "180 N. C., 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653649 ], "opinion_index": 0, "case_paths": [ "/nc/180/0369-01" ] }, { "cite": "134 S. E., 641", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N. C., 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621113 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/192/0240-01" ] }, { "cite": "90 N. C., 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692404 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/90/0284-01" ] }, { "cite": "121 N. C., 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652860 ], "opinion_index": 0, "case_paths": [ "/nc/121/0251-01" ] }, { "cite": "106 S. E., 657", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "181 N. C., 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655500 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/181/0158-01" ] }, { "cite": "136 S. E., 733", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "193 N. C., 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217728 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/193/0294-01" ] }, { "cite": "43 S. E., 550", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "132 N. C., 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657775 ], "opinion_index": 0, "case_paths": [ "/nc/132/0115-01" ] }, { "cite": "186 S. E., 356", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N. C., 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626186 ], "opinion_index": 0, "case_paths": [ "/nc/210/0321-01" ] } ], "analysis": { "cardinality": 747, "char_count": 19830, "ocr_confidence": 0.495, "pagerank": { "raw": 3.0855580840936466e-07, "percentile": 0.858284401909146 }, "sha256": "1c67ed5cc37d8c60ab4e34cdbe4634dba49d22cb253b86d27a983c582b157270", "simhash": "1:cd758a3368012cd7", "word_count": 3646 }, "last_updated": "2023-07-14T19:22:12.547739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "IRENE GREEN WILLIAMSON, Sometimes Called MARY WILLIAMSON, Widow of HENRY W. WILLIAMSON, Deceased, et al., v. ELLEN W. COX and Husband, DAVE COX." ], "opinions": [ { "text": "DeviN, J.\nTbis case involves tbe construction of tbe following clause in tbe will of Patrick Williamson:\n\u201cI give and bequeath to my son, Henry Singler Williamson, all tbe balance of my land, to bave and to bold to bim and bis bodily beirs born in wedlock, if any, if no sucb beirs, tben to go back to bis nearest of blood kin.\u201d\nHenry Singler Williamson died without issue, leaving surviving bis widow and several nieces and nephews, children of deceased brothers and sisters, who are tbe plaintiffs in tbis action, and one surviving sister, Ellen W. Cox, tbe defendant.\nTbe plaintiffs contend that under tbe will Henry Singler Williamson took a fee simple, and that hence the land descended to bis beirs general, subject to tbe dower right of tbe widow. They base their contention upon several grounds: (1) That tbe first portion of tbe will devised an estate in fee simple, and that a limitation over was void; (2) that tbe first taker was presumably tbe favorite of tbe testator, and that language of doubtful meaning should be construed in favor of tbe early vesting of tbe estate; (3) that tbe limitation over is made to depend upon no supervening contingency, tbe happening of which would defeat tbe prior estate; (4) that if tbe phrase \u201cbodily heirs\u201d be construed children, tben Henry Singler Williamson having no children, tbe devise conveyed an estate tail which tbe statute (C. S., 1734) would convert into a fee simple.\nOn tbe other band, tbe defendants contend that by tbe use of tbe words \u201cbeirs of tbe body born in wedlock,\u201d taken in connection with tbe entire language in which tbe devise was expressed, there was manifest tbe intention on tbe part of tbe testator that these words be understood to mean lawful issue or children; that by this expression in connection with the following words, \u201cif any, if no such heirs, then to go back to his nearest of blood kin,\u201d there was constituted a contingency upon which the limitation over was to depend; that Henry Singler Williamson took only a determinable fee under the will; and that upon his death without bodily heirs born in wedlock, the land passed to his nearest of blood kin, his surviving sister, Ellen W. Cox.\nThe cardinal principle in the interpretation of wills is that the intention of the testator as expressed in the language of the instrument shall prevail, and that the application of technical rules will not be permitted to defeat an intention which substantially appears from the entire instrument. Heyer v. Bulluck, 210 N. C., 321, 186 S. E., 356; Smith v. Mears, post, 193. However, accepted canons of construction which have become settled rules of law and of property cannot be disregarded. As was said in May v. Lewis, 132 N. C., 115, 43 S. E., 550: \u201cIt is our duty, as far as possible, to give the words used by a testator their legal significance, unless it is apparent from the will itself that they were used in some other sense.\u201d 4 Kent\u2019s Com., 231.\nIt may be noted at the outset that the rule in Shelley\u2019s case has no application here. Daniel v. Bass, 193 N. C., 294, 136 S. E., 733; Wallace v. Wallace, 181 N. C., 158, 106 S. E., 657; May v. Lewis, supra. The language of the devise does not present a case which would require the application of that rule of ancient origin and continuing vitality which Justice Douglas in Stamper v. Stamper, 121 N. C., 251, wittily dubbed \u201cthe Don Quixote of the law.\u201d\nIf the testator had used the words \u201cto Henry Singler Williamson and his bodily heirs,\u201d and no more, undoubtedly a fee simple would have been conveyed. Did the subsequent words, \u201cif any, if no such heirs, then to go back to his nearest of blood kin,\u201d defeat that estate upon his death without bodily heirs born in wedlock, and serve to pass the fee to his nearest of blood kin ? At common law a fee simple could not be limited after a fee simple. But after the statute of uses (27 Henry VIII), it was held that the estate created by a deed operating under the statute might be made to commence in futuro without immediate transmutation of possession, and that by such conveyances inheritances might be made to shift from one to another upon a supervening contingency, and thence arose the doctrine of springing and shifting uses or conditional limitations. As stated by Ashe, J., in Smith v. Brisson, 90 N. C., 284, \u201cIt was under the doctrine of a shifting use that it has been held since early after the statute of uses that a fee simple may be limited after a fee simple either by deed or will; if by deed, it is a conditional limitation; if by will, it is an executory devise. \u2018And in both cases a fee may be limited after a fee.\u2019 2 Blk., 235.\u201d By the Act of 1827, now C. S., 1737, it was provided that: \u201cEvery contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children, . . . shall be held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or child . . . living at the time of his death.\u201d\nIn Massengill v. Abell, 192 N. C., 240, 134 S. E., 641, this Court construed a will wherein the testator devised land to \u201cNathan A. Massen-gill and his heirs, and if no heirs at his death, to return to his nearest relations.\u201d It was there held, Adams, J,, speaking for the Court, that if Nathan A. Massengill should die leaving no issue at his death the limitation over would take effect, the ulterior limitation \u201cif no heirs at his death\u201d becoming effective. The Court said, \u201cHq (the testator) limited a fee upon a fee by cutting down the first in order to make room for the second. Carroll v. Herring, 180 N. C., 369, 104 S. E., 892. The principle is familiar. A devise to A and his heirs, to be void if A have no child living at his death, leaves the devisor some interest which he may give to a third person, and in the disposition of such interest under the doctrine of springing and shifting uses a fee may be limited after a fee (Willis v. Trust Co., 183 N. C., 267, 111 S. E., 163; McDaniel v. McDaniel, 58 N. C., 351), and the ulterior limitation will become effective upon the death of the first taker.\u201d\nIt was also said in this well considered case of Massengill v. Abell, supra: \u201cA limitation to the heirs of a living person, if no contrary intentions appear in the deed or will, will be construed to be to the children of such person. C. S., 1739. But this is not a limitation to the heirs of a living person, but a limitation over if there he no heirs at the death of the first taker, and the word 'heirs\u2019 in this phrase means 'issue.\u2019 \u201d It was accordingly held that the limitation over would become effective if the first taker had no issue living at his death.\nIn Hudson v. Hudson, 208 N. C., 338, 180 S. E., 579, the testator devised land to his daughter \u201cto be hers and her heirs, if any, and if no heirs to be equally divided with other children.\u201d It was held this did not convey an indefeasible fee.\nIn Puckett v. Morgan, 158 N. C., 344, 74 S. E., 15, the devise of land was to \u201cM during her life, then to her bodily heirs, if any, but if she have none, back to her brothers and sisters.\u201d The Court held the words \u201cbodily heirs, if any,\u201d coupled with an ulterior limitation to her brothers and sisters, showed that the words \u201cbodily heirs\u201d (equivalent to heirs of the body) were not used in their technical sense but meant children or issue. And in Jones v. Whichard, 163 N. C., 241, 79 S. E., 503, where the conveyance was to R and M for life, \u201cand then to their legal bodily heirs provided they have any and if not to be equally divided among nearest kin,\u201d the same result was reached.\nIn Hampton v. Griggs, 184 N. C., 13, 113 S. E., 501, the present Chief Justice pointed out that, in determining whether the testator used the words \u201clawful heirs of my son\u201d in their technical sense, the ordinary principles of construction' should be applied in order to ascertain the intent of the testator. It was held in that case that these words were used in the sense of issue or children. The same view was expressed by Hoke, J., in Pugh v. Allen, 179 N. C., 307, 102 S. E., 394, and similar rulings of this Court in Francks v. Whitaker, 116 N. C., 518, 21 S. E., 175; Rollins v. Keel, 115 N. C., 68, 20 S. E., 209; and Sain v. Baker, 128 N. C., 256, 38 S. E., 858, were cited.\nIn Reid v. Neal, 182 N. C., 192, 108 S. E., 769, the testator devised land to his daughter, \u201cto her during her natural life, and at her death I give it to her bodily heirs, if any, and if none, to return to my estate.\u201d After reviewing a number of decided cases, Adams, J., uses this language: \u201cAfter a careful consideration of the authorities we conclude that effect must he given the ulterior limitation, \u2018and if none, to return to my estate\u2019; that the testator gave to his daughter a life estate with remainder in fee defeasible upon failure of \u2018bodily heirs,\u2019 \u201d these words being construed to mean issue.\nIn Wallace v. Wallace, supra, the Court construed a deed conveying land to C. A. Wallace for life, and after his death \u201cto his bodily heirs in fee simple, if any, and if none, to go to his next of kin.\u201d It was held the words \u201cbodily heirs\u201d were used in the sense of children or issue, and that the estate conveyed was to C. A. Wallace for life, remainder to his issue, and upon failure of issue over to his next of kin, the term next of kin being synonymous with nearest of kin.\nIn Smith v. Brisson, 90 N. C., 284, the conveyance was \u201cto Rowland Mercer and the heirs of his body, and if said Rowland Mercer should have no heirs, the said land shall go to the heirs of my son, James A. Mercer.\u201d The deed was construed as if it read \u201cto Rowland Mercer and the heirs of his body, and if Rowland Mercer should die not having such leirs living at his death, the land shall go to the children of James A. Mercer.\u201d It was accordingly held that the deed conveyed only a determinable fee to Rowland Mercer, which terminated by his death without \u2022children and vested an absolute fee simple by the limitation in the deed in the children of J ames A. Mercer.\nIn McDaniel v. McDaniel, 58 N. C., 351, where the devise was to L and his heirs; provided, should L die leaving no lawful heir or issue \u25a0surviving him, the land to be divided among testator\u2019s surviving sons, it was held the restriction operated as a condition to cut down the estate so that L took not a fee simple but a fee determinable upon his death without issue him surviving.\nIn the case of Harrell v. Hagan, 147 N. C., 111, 60 S. E., 909, where the devise was to four daughters: \u201cif either or all of the above girls die without leaving a lawful heir,\u201d the land to go to testator\u2019s sons, it was held the estates devised to the daughters were determinable as to each devisee on her dying without leaving a lawful heir. It was said by the Court: \u201cThe event by which the interest of each is to be determined must be referred ... to the death of the several takers of the estate in remainder without leaving a lawful heir.\u201d\nPlaintiffs contend that the devise in the instant case should be construed in accord with the principle held to be controlling in Daniel v. Bass, 193 N. C., 294, 136 S. E., 733, and Boyd v. Campbell, 192 N. C., 398, 135 S. E., 121.\nIn Daniel v. Bass, supra, the testator devised land \u201cto my sisters, Nancy Daniel and Mehala Daniel, ... to them and their heirs forever, if any. If not, to the heirs of my sisters, Mary Jane Hathaway, Celia Bass and Sallie Powe, to them and their assigns forever.\u201d It was held by this Court that in the expression \u201cto them and their heirs forever,\u201d the word \u201cheirs\u201d must be given its technical meaning, and that an estate in fee simple was thereby devised to the first takers, and that the additional words \u201cif any\u201d did not change the quantity of the estate. The Court said: \u201cThere can be no limitation of a fee after a fee unless there be some contingency which defeats the estate of the first taker. The prior estate may be a fee defeasible or determinable by the contingency on which it is limited; but such supervening contingency is essential, and it must operate to defeat, abridge or cut down the prior estate in order to make room for the limitation. In the will under consideration we discover no such contingency. There is no limitation over in the event of the first takers\u2019 death without children or issue; and herein, if in no other respect, the devise differs from that in Massengill v. Abell, 192 N. C., 240.\u201d\nThe distinction is apparent when it is noted that in the case at bar the devise is \u201cto Henry Singler 'Williamson and his bodily heirs born in wedlock, if any, if no such heirs, then to go back to his nearest of blood kin.\u201d\nIn Boyd v. Campbell, 192 N. C., 398, 135 S. E., 121, it was decided that a deed \u201cto Pleas Clodfeler, his children, their heirs, and then to his grandchildren forever\u201d carried the fee to the first taker. Pleas Clodfeler having no children when the deed was executed, he took an estate tail, which, under C. S., 1734, was converted into a fee simple. There was no supervening contingency to give efficacy to the doctrine of shifting uses and to convey a fee after a fee' by way of conditional limitation. Here there was the contingency that Henry Singler 'Williamson have \u201cno such heirs,\u201d that is, \u201cbodily heirs born in wedlock,\u201d failing which the land passed by the- terms of the will to his next of kin.\nIn Westfeldt v. Reynolds, 191 N. C., 802, 133 S. E., 168, a devise of one-half of the property to Lulie \"Westfeldt, \u201cand should Lulie Westfeldt die without heirs the property to go over to Overton Westfeldt Price\u2019s children,\u201d was, under the particular circumstances of the parties in that case, held to convey a fee simple. And in Cooper, Ex Parte, 136 N. C., 130, 48 S. E., 581, a devise to Arch Cooper \u201cand if Arch Cooper ever marries and has a lawful heir they have the land,\u201d was held to convey a fee simple to the first taker. \u201cWe must regard the words If Arch Cooper ever marries\u2019 as surplusage,\u201d said the Court.\nThe decisions upon the particular facts of those cases may not be held controlling in the construction of the language used in the devise under consideration in this case.\nIt will be noted that in the first clause the testator here devised the land to Henry Singler Williamson \u201cand his bodily heirs born in wedlock.\u201d This expression is similar to that construed in Blackledge v. Simmons, 180 N. C., 535, 105 S. E., 202, where the language used was \u201cheirs of the body lawfully begotten.\u201d There it was stated that in order to invoke the rule constituting a fee simple the inheritance must be limited to heirs as heirs of the first taker, as an entire class of persons and not merely individuals embraced within that class; and that \u201cheirs of the body lawfully begotten\u201d would be understood to mean begotten in lawful wedlock. This, it was held, would exclude illegitimate children who, under certain circumstances, and by virtue of C. S., 277, and C. S., 279, might, in a restricted way, become heirs.\nWhile the expression \u201cbodily heirs\u201d is equivalent to \u201cheirs of the body,\u201d and the term heirs of the body ordinarily comes within the general definition of heirs in its technical significance (Donnell v. Mateer, 40 N. C., 6 [9]), the words heirs of the body, in numerous cases, in view of the context and the manifest intention of the devisor, have been held to mean children or issue. Allen v. Pass, 20 N. C., 207; Thompson v. Mitchell, 57 N. C., 441; Pless v. Coble, 58 N. C., 231; Crawford v. Wearn, 115 N. C., 540, 20 S. E., 724; Francks v. Whitaker, 116 N. C., 518, 21 S. E., 175; Bird v. Gilliam, 121 N. C., 326, 28 S. E., 489; May v. Lewis, supra; Smith v. Lumber Co., 155 N. C., 389, 71 S. E., 445; Swindell v. Smaw, 156 N. C., 1, 72 S. E., 1; Puckett v. Morgan, 158 N. C., 344, 74 S. E., 15; Blackledge v. Simmons, 180 N. C., 535, 105 S. E., 202; Moseley v. Knott, 212 N. C., 651, 194 S. E., 100. By statute (C. S., 1739) it is required that \u201ca limitation by deed, will, or other writing, to the heirs of a living person, shall be construed to be the children of such person, unless a contrary intention appear by the deed or will.\u201d This statute was construed by Chief Justice Shepherd in Starnes v. Hill, 112 N. C., 1, 16 S. E., 1011.\nUpon tbe authorities herein cited, and others, containing expressions in deeds and wills similar to those used in the will under consideration, we conclude that the limitation over in the event Henry Singler Williamson should die without issue born in wedlock became effective upon his dying without such issue, and that by the terms of the will the land thereupon passed to his nearest of blood kin.\nThere is no serious question raised that on the death of Henry Singler Williamson without lawful issue, his nearest blood relation was his surviving sister, Ellen W. Cox, the defendant. Knox v. Knox, 208 N. C., 141, 179 S. E., 610; Wallace v. Wallace, 181 N. C., 158, 106 S. E., 501; Miller v. Harding, 167 N. C., 53, 83 S. E., 25; Davenport v. Hassell, 45 N. C., 29.\nWe think the trial judge has given the proper interpretation to the will of Patrick Williamson, and has correctly, decided the questions presented in this case. The judgment of the court below is\nAffirmed.", "type": "majority", "author": "DeviN, J." } ], "attorneys": [ "Lulce Lamb for plaintiffs, appellants.", "A. 0. Dickens and Connor ds Connor for defendants, appellees." ], "corrections": "", "head_matter": "IRENE GREEN WILLIAMSON, Sometimes Called MARY WILLIAMSON, Widow of HENRY W. WILLIAMSON, Deceased, et al., v. ELLEN W. COX and Husband, DAVE COX.\n(Filed 25 September, 1940.)\n1. Wills \u00a7 31 \u2014 Cardinal rule in interpretation of will is to effectuate intent of testator.\nTbe cardinal principle in tbe interpretation of wills is that tbe intention of tbe testator as expressed in tbe language of tbe instrument shall prevail, and that the application of technical rules will not be permitted to defeat an intention which substantially appears from tbe entire instrument, although accepted canons of construction which have become settled rules of law and property cannot be disregarded.\n2. Wills \u00a7 33b\u2014\nA devise to testator\u2019s son \u201cto have and to hold to him and his bodily heirs born in wedlock, if any, if no such heirs then to go back to his nearest of kin,\u201d is held, to disclose that the words \u201cbodily heirs\u201d were not used in their technical sense as heirs general, but were used in the sense of children or issue, and the rule in Shelley\u2019s case does not apply.\n3. Wills \u00a7 33c\u2014\nUnder the statute of uses, a fee simple may be limited after a fee simple by executory devise under the doctrine of springing or shifting uses, but in order for this doctrine to apply it is necessary that there be a supervening contingency to limit or cut down the first estate and make room for the limitation over.\n4. Same\u2014\nWhere a contingent limitation over is made to depend upon the death of the first taker without children or issue, the limitation takes effect when the first taker dies without issue or children living at the time of his death. C. S., 1737.\n5. Same \u2014 First taker held to take determinable fee with limitation over to his next of kin upon his death without issue.\nA devise to testator\u2019s son \u201cto have and to hold to him and his bodily heirs born in wedlock, if any, if no such heirs then to go back to his nearest of kin,\u201d is held to devise a determinable fee to the first taker upon the supervening contingency of his death without children or issue him surviving, it being apparent that the words \u201cbodily heirs\u201d were not used in their technical sense, but meant issue or children, C. S., 1739, and upon the death of the first taker without issue him surviving, his surviving sister takes as his next of kin to the exclusion of his nephews and nieces, children of deceased brothers and sisters.\nAppeal by plaintiffs from Nimocks, J., at June Term, 1940, of WilsoN.\nAffirmed.\nLulce Lamb for plaintiffs, appellants.\nA. 0. Dickens and Connor ds Connor for defendants, appellees." }, "file_name": "0177-01", "first_page_order": 245, "last_page_order": 252 }