{ "id": 8560364, "name": "ELSIE JOHNSON WRIGHT, JULIA DAVIS WRIGHT CHANEY, DAVID WILSON WRIGHT, JR. and HUGH COBB WRIGHT v. WILLIAM A. VADEN, Trustee for the Beneficiaries Under the Will of the Late W. W. DAVIS, Deceased, and CHARLES W. CAMPBELL, Guardian ad litem for JEAN JOHNSON WRIGHT, and DAVID WILSON WRIGHT, III, Minor Children of DAVID W. WRIGHT, JR., and WILLIAM DAVID CHANEY and HARVEY LESTER CHANEY, III, Minor Children of JULIA DAVIS WRIGHT CHANEY, SALLY LYNN WRIGHT and HUGH COBB WRIGHT, JR., Minor Children of HUGH COBB WRIGHT, and all Other Lineal Descendants of ELSIE MAY JOHNSON, who is Also Known as ELSIE MAY JOHNSON WRIGHT, Including Such Unborn Children or Other Lineal Descendants of the Said ELSIE MAY JOHNSON WRIGHT", "name_abbreviation": "Wright v. Vaden", "decision_date": "1966-01-14", "docket_number": "", "first_page": "299", "last_page": "304", "citations": [ { "type": "official", "cite": "266 N.C. 299" } ], "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": "83 S.E. 25", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "26" } ], "opinion_index": 0 }, { "cite": "167 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271288 ], "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc/167/0053-01" ] }, { "cite": "46 S.E. 756", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "134 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273056 ], "opinion_index": 0, "case_paths": [ "/nc/134/0319-01" ] }, { "cite": "48 S.E. 516", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "136 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658473 ], "opinion_index": 0, "case_paths": [ "/nc/136/0046-01" ] }, { "cite": "100 S.E. 702", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272478 ], "opinion_index": 0, "case_paths": [ "/nc/178/0370-01" ] }, { "cite": "101 S.E. 279", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273203 ], "opinion_index": 0, "case_paths": [ "/nc/178/0548-01" ] }, { "cite": "137 S.E. 160", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217815 ], "opinion_index": 0, "case_paths": [ "/nc/193/0437-01" ] }, { "cite": "133 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575296 ], "opinion_index": 0, "case_paths": [ "/nc/260/0482-01" ] }, { "cite": "56 S.E. 793", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "794" } ], "opinion_index": 0 }, { "cite": "144 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658847 ], "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/144/0107-01" ] }, { "cite": "29 S.E. 2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "224 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596176 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nc/224/0133-01" ] }, { "cite": "20 N.C.L. Rev. 49", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1941, "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "52 S.E. 201", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "204" } ], "opinion_index": 0 }, { "cite": "139 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652959 ], "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc/139/0503-01" ] }, { "cite": "16 S.E. 1011", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "1016" } ], "opinion_index": 0 }, { "cite": "112 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650307 ], "pin_cites": [ { "page": "19-20" } ], "opinion_index": 0, "case_paths": [ "/nc/112/0001-01" ] }, { "cite": "143 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574849 ], "opinion_index": 0, "case_paths": [ "/nc/265/0204-01" ] }, { "cite": "133 S.E. 2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576251 ], "opinion_index": 0, "case_paths": [ "/nc/260/0737-01" ] }, { "cite": "92 S.E. 2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "425" } ], "opinion_index": 0 }, { "cite": "244 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219555 ], "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0071-01" ] }, { "cite": "23 S.E. 459", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "460" } ], "opinion_index": 0 }, { "cite": "117 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653538 ], "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/nc/117/0497-01" ] }, { "cite": "142 S.E. 313", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 4, "pin_cites": [ { "page": "314" }, { "page": "314" }, { "page": "314-15" } ], "opinion_index": 0 }, { "cite": "195 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629890 ], "opinion_index": 0, "case_paths": [ "/nc/195/0427-01" ] }, { "cite": "96 S.E. 662", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "176 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654865 ], "opinion_index": 0, "case_paths": [ "/nc/176/0001-01" ] }, { "cite": "81 N.C. 12", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683753 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/81/0012-01" ] } ], "analysis": { "cardinality": 640, "char_count": 12649, "ocr_confidence": 0.573, "pagerank": { "raw": 1.1285547207375487e-07, "percentile": 0.5752412592394383 }, "sha256": "da45c31c0b2589ca523fe67b349a28bb3252ba99a45b1e950f1657ed0de5a006", "simhash": "1:e3a28a4106642c2e", "word_count": 2190 }, "last_updated": "2023-07-14T18:16:51.556627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELSIE JOHNSON WRIGHT, JULIA DAVIS WRIGHT CHANEY, DAVID WILSON WRIGHT, JR. and HUGH COBB WRIGHT v. WILLIAM A. VADEN, Trustee for the Beneficiaries Under the Will of the Late W. W. DAVIS, Deceased, and CHARLES W. CAMPBELL, Guardian ad litem for JEAN JOHNSON WRIGHT, and DAVID WILSON WRIGHT, III, Minor Children of DAVID W. WRIGHT, JR., and WILLIAM DAVID CHANEY and HARVEY LESTER CHANEY, III, Minor Children of JULIA DAVIS WRIGHT CHANEY, SALLY LYNN WRIGHT and HUGH COBB WRIGHT, JR., Minor Children of HUGH COBB WRIGHT, and all Other Lineal Descendants of ELSIE MAY JOHNSON, who is Also Known as ELSIE MAY JOHNSON WRIGHT, Including Such Unborn Children or Other Lineal Descendants of the Said ELSIE MAY JOHNSON WRIGHT." ], "opinions": [ { "text": "Shabp, J.\nThis action, being for the construction of a will, should have been brought in Gaston County where the will was adr mitted to probate. Since, however, no objection on this ground was taken in the court below, the improper venue was waived. Devereux v. Devereux, 81 N.C. 12; McIntosh, N. C. Practice and Procedure \u00a7 804 (1956).\nThe question presented by this appeal is whether, in the devise of the remainder after her death, the words \u201cto the children or other lineal descendants of said Elsie May Johnson\u201d are words of purchase, or words of limitation which bring the devise within the rule in Shelley\u2019s Case. (Emphasis added.)\n\u201cThe rule in Shelley\u2019s Case was first stated, 1 Coke 104, in 1581, and is as follows: 'When an ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase.\u2019 \u201d Crisp v. Biggs, 176 N.C. 1-2, 96 S.E. 662.\nSee also Martin v. Knowles, 195 N.C. 427, 142 S.E. 313; Nichols v. Gladden, 117 N.C. 497, 500, 23 S.E. 459, 460. \u201c \u2018The rule . . . applies whenever judicial exposition determines that heirs are described, though informally, under a term correctly descriptive of other objects, but stands excluded whenever it determines that other objects are described, though informally, under the term heirs.\u2019 \u201d Martin v. Knowles, supra at 430, 142 S.E. at 314.\nWithout doubt, testator intended that Elsie May Johnson (Wright) should take only a life estate in his property. If, however, the rule in Shelley\u2019s Case is applicable, she is entitled to the entire corpus of testator\u2019s estate, for it operates \u201c \u2018as a rule of property without regard to the intent of the grantor or devisor.\u2019 \u201d Hammer v. Brantley, 244 N.C. 71, 72, 92 S.E. 2d 424, 425; accord, Chappell v. Chappell, 260 N.C. 737, 133 S.E. 2d 666. Furthermore, with us the Rule applies to personalty as well as to realty. Riegel v. Lyerly, 265 N.C. 204, 143 S.E. 2d 65.\nIn considering the applicability of the rule in Shelley\u2019s Case, it is important to draw and constantly keep in mind the difference between words of purchase and words of limitation. When used with reference to the Rule, words of purchase give the remainder to designated persons who thus take in their own right under the will or conveyance, and not by descent as heirs of the first taker. A purchaser, .therefore, is one who acquires property in any manner other than by descent. See 1 Mordecai, Law Lectures \u00a7 648 (2d Ed. 1916); Black, Law Dictionary 1399 (4th Ed. 1951); Ballentine, Law Dictionary 1369-70 (2d Ed. 1948); 96 C.J.S., Wills \u00a7 870 (1957). Words of limitation denote the creation of an estate and define its extent or quality. Starnes v. Hill, 112 N.C. 1, 19-20, 16 S.E. 1011, 1016; Campbell v. Everhart, 139 N.C. 503, 511, 52 S.E. 201, 204; Ballentine, op. cit. supra 760; Black, op. cit. supra 1076. They are words\n\u201cwhich by referring to some other words in the instrument describe the extent or size of an estate that has already attached to some person. And so when the Rule says that the words \u2018heirs\u2019 or the \u2018heirs of the body\u2019 of A are words of limitation and not words of purchase, it simply means that 'heirs\u2019 or the \u2018heirs of the body\u2019 refer to and are read in connection with the estate given to A, extending or modifying that estate, and are not taken as describing a group to whom an estate will first attach.\u201d Block, The Rule in Shelley\u2019s Case in North Carolina, 20 N.C.L. Rev. 49, 50 (1941).\nPlaintiffs contend that the devise \u201cto the children or other lineal descendants of said Elsie May Johnson\u201d is the equivalent of a devise to the heirs of her body and that the words are, therefore, words of limitation which create in her a fee tail, converted by G. S. 41-1 into a fee simple.\nIt is settled in North Carolina, and generally, that the word children is ordinarily a word of purchase. Moore v. Baker, 224 N.C. 133, 29 S.E. 2d 452; 47 Am. Jur., Shelley\u2019s Case \u00a7 18 (1943). Children, standing alone, does not refer to an indefinite line of succession from generation to generation; they are a class within heirs generally. \u201cWhen the devise is to one for life and after his death to his children or issue, the rule has no application, unless it manifestly appears that such words are used in the sense of heirs generally.\u201d Faison v. Odom, 144 N.C. 107, 109, 56 S.E. 793, 794. Accord, In re Will of Wilson, 260 N.C. 482, 133 S.E. 2d 189; Moore v. Baker, supra; Bobbitt v. Pierson, 193 N.C. 437, 137 S.E. 160; Hutton v. Horton, 178 N.C. 548, 101 S.E. 279; Smith v. Moore, 178 N.C. 370, 100 S.E. 702; Wilkinson v. Boyd, 136 N.C. 46, 48 S.E. 516; Hauser v. Craft, 134 N.C. 319, 46 S.E. 756.\n\u201c \u2018Thus, even the word children, aided by the context, or the word issue, uncontrolled by the context, may have all the force of the word heirs, and then the rule applies; while the word heirs, restrained by the context, may have only the force of the word children, and then the rule is utterly irrelevant. These are preliminary questions, purely of construction, to be considered without any reference to the rule, and to be solved by, exclusively, the ordinary process of interpretation. This point, kept steadily in view, would have prevented infinite confusion.\u2019 \u201d Martin v. Knowles, supra at 430, 142 S.E. at 314.\nIn paragraph Third of his will, had testator stopped with the word children, no question of the application of the Rule could have arisen. To sustain their position that the addition of the words \u201cor other lineal descendants\u201d invokes the- Rule, plaintiffs rely on the case of In re Will of Wilson, supra. In Wilson, after devising lands to her three nephews and a grandnephew, testatrix said, \u201cat there death I want the place to go to there children & so on \u2014 I would love for it to always be the Spain place.\u201d This Court was of the opinion that the phrase & so on, coupled with her expressed desire \u201cfor it to always be the Spain place,\u201d indicated testatrix\u2019 intention that each succeeding generation should take the property. The Court held, therefore, that the Wilson language was equivalent to \u201cheirs of the body.\u201d The result was that, under the rule in Shelley\u2019s Case and the doctrine of merger, the nephews and grandnephew took an estate tail, converted by G.S. 41-1 into a fee simple. See Martin v. Knowles, supra at 432, 142 S.E. at 314-15.\nIn the instant case, however, we do not think the superadded words \u201cor other lineal descendants ... to have and to hold the same to them and their heirs, executors and administrators absolutely\u201d demonstrate that testator contemplated an indefinite succession from generation to generation. On the contrary, the finality of the term absolutely and the use of the disjunctive or clearly indicate testator\u2019s intention that his estate should vest at the death of Elsie May Johnson and that, should any of her children predecease her, the issue of such child would take the parent\u2019s share. As the \u201cabsolute\u201d takers, he designated those of her children who survived her or, alternatively, the issue of children predeceasing her. Members of such a class are not heirs \u201cwho take generally without exception, as a class of inheritable persons.\u201d Miller v. Harding, 167 N.C. 53, 54, 83 S.E. 25, 26. In its reference to descendants, the devise in question refers only to descendants of a particular class of heirs, i.e., predeceased children of the life tenant. Thus, the words \u201cchildren or other lineal descendants\u201d are words of purchase, and the rule in Shelley\u2019s Case has no application.\nWe hold, therefore, that Elsie May Johnson (Wright) has only a life estate in the property of testator. At her death, her children then surviving, together with the issue of any predeceased child (which issue will represent their parent), will take the fee simple.\nThe judgment below is\nAffirmed.", "type": "majority", "author": "Shabp, J." } ], "attorneys": [ "McMichael & Griffin for plaintiff appellants.", "Charles W. Campbell, Guardian ad litem for Jean Johnson Wright et al, defendant appellees." ], "corrections": "", "head_matter": "ELSIE JOHNSON WRIGHT, JULIA DAVIS WRIGHT CHANEY, DAVID WILSON WRIGHT, JR. and HUGH COBB WRIGHT v. WILLIAM A. VADEN, Trustee for the Beneficiaries Under the Will of the Late W. W. DAVIS, Deceased, and CHARLES W. CAMPBELL, Guardian ad litem for JEAN JOHNSON WRIGHT, and DAVID WILSON WRIGHT, III, Minor Children of DAVID W. WRIGHT, JR., and WILLIAM DAVID CHANEY and HARVEY LESTER CHANEY, III, Minor Children of JULIA DAVIS WRIGHT CHANEY, SALLY LYNN WRIGHT and HUGH COBB WRIGHT, JR., Minor Children of HUGH COBB WRIGHT, and all Other Lineal Descendants of ELSIE MAY JOHNSON, who is Also Known as ELSIE MAY JOHNSON WRIGHT, Including Such Unborn Children or Other Lineal Descendants of the Said ELSIE MAY JOHNSON WRIGHT.\n(Filed 14 January, 1966.)\n1. Venue \u00a7 3\u2014\nAn action for the construction of a will should be instituted in the county where the will was admitted to probate.\n2. Venue \u00a7 1\u2014\nFailure to object to improper venue constitutes a waiver thereof.\n3. Wills \u00a7 32\u2014\nThe rule in Shelley's Case applies where there is a remainder over after a life estate to the heirs general of the life tenant, and if the words used, regardless of phraseology, disclose an intent to carry the remainder to such heirs the rule applies as a rule of property, notwithstanding testator may have intended to convey only a life estate to the first taker.\n4. Same\u2014\nThe word \u201cpurchaser\u201d when used with reference to the rule in Shelley's Case designates one who takes an estate in his own right under the instrument, while words of limitation define the extent or quality of the estate.\n5. Same\u2014\nThe word \u201cchildren\u201d is usually a word of purchase and does not attract the rule in Shelley\u2019s Oase unless the language of the instrument discloses that the word was used to designate heirs generally.\n6. Same\u2014\nA devise to a life tenant and at her death \u201cto the children or other lineal descendants of the said\u201d life tenant * * * \u201cto them and their heirs, executors and administrators absolutely,\u201d held not to attract the rule in Shelley\u2019s Case, since it is apparent that testator was not describing heirs general to take in indefinite succession but wished the remainder to go to the children of the life tenant who survived the life tenant and to the issue of children who predeceased her.\nAppeal by plaintiffs from Johnston, J., May 1965 Civil Session Of ROCKINGHAM.\nAction for a declaratory judgment to construe the will of W. W. Davis. The pleadings establish these facts:\nThe will, dated November 20, 1913, was probated in Gaston County on January 10, 1924. By the first provision of his will, testator bequeathed and devised all his property to his wife, Julia Davis, for her lifetime. The second and third provisions are as follows:\n\u201cSecond \u2014 After the death of my said wife, I give, bequeath and devise all of my property, real, personal and mixed, to Elsie May Johnson, to have and to hold the same to her use for and during her life time.\n\u201cThird \u2014 After the death of my said wife and after the death of said Elsie May Johnson, I give, bequeath and devise all of my property, real, personal and mixed, to the children or other lineal descendants of said Elsie May Johnson, to have and to hold the same to them and their heirs, executors and administrators absolutely.\u201d\nJulia Davis is dead. Elsie May Johnson married David M. Wright. To them were born three children, Julia Davis Wright Chaney, Davis Wilson Wright, Jr., and Hugh Cobb Wright. All three children are over 21 years of age. Elsie May Johnson (Wright) is now 65 years of age. Her husband is dead and she has not remarried.\nThe assets of testator\u2019s estate, now \u201cin the form of cash and other lawful investments,\u201d are held by defendant William A. Vaden as trustee for the testamentary beneficiaries. Plaintiffs are Elsie May Johnson (Wright) and her three children. Defendants are the trustee and grandchildren of Elsie May Johnson (Wright) and all other lineal descendants of Elsie May Johnson (Wright) yet unborn. The minor grandchildren and unborns are represented by their duly appointed guardian ad litem.\nPlaintiffs contend that 'the devise to Elsie May Johnson (Wright) constituted an estate in tail which, under the rule in Shelley\u2019s Case and G.S. 41-1, was converted into a fee simple, and that she is presently entitled to testator\u2019s entire estate. Defendants contend that Elsie May Johnson (Wright) took only a life estate. From a judgment decreeing that she took a life estate in the property, \u201cand that upon her death, her children, or other lineal descendants, shall take the remainder in said property in fee,\u201d plaintiffs appeal.\nMcMichael & Griffin for plaintiff appellants.\nCharles W. Campbell, Guardian ad litem for Jean Johnson Wright et al, defendant appellees." }, "file_name": "0299-01", "first_page_order": 335, "last_page_order": 340 }