{ "id": 8560188, "name": "SAMUEL WHITE, MARY WHITE RAMSEY, GEORGE LYNCH and LUCILLE LYNCH THOMPSON v. BILLY ROY ALEXANDER and IYA WHITE", "name_abbreviation": "White v. Alexander", "decision_date": "1976-05-14", "docket_number": "No. 74", "first_page": "75", "last_page": "86", "citations": [ { "type": "official", "cite": "290 N.C. 75" } ], "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": "209 S.E. 2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "24 N.C. App. 23", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548482 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/24/0023-01" ] }, { "cite": "49 A.L.R. 174", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1927, "opinion_index": 0 }, { "cite": "127 A.L.R. 602", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1940, "opinion_index": 0 }, { "cite": "169 A.L.R. 207", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1947, "opinion_index": 0 }, { "cite": "82 S.E. 863", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "opinion_index": 0 }, { "cite": "166 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270370 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/nc/166/0523-01" ] }, { "cite": "107 S.E. 431", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "181 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656202 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nc/181/0406-01" ] }, { "cite": "30 A.L.R. 2d 393", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "436-441" } ], "opinion_index": 0 }, { "cite": "98 S.E. 724", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "opinion_index": 0 }, { "cite": "177 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654146 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/177/0229-01" ] }, { "cite": "46 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1948, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "228 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626951 ], "weight": 2, "year": 1948, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0473-01" ] }, { "cite": "92 S.E. 2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219587 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0142-01" ] }, { "cite": "97 S.E. 2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624507 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0091-01" ] }, { "cite": "38 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2098310 ], "year": 1844, "opinion_index": 0, "case_paths": [ "/nc/38/0369-01" ] }, { "cite": "47 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681312 ], "year": 1854, "opinion_index": 0, "case_paths": [ "/nc/47/0074-01" ] }, { "cite": "115 S.E. 887", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "185 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655220 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/185/0040-01" ] }, { "cite": "80 S.E. 247", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "164 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656673 ], "year": 1913, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc/164/0128-01" ] }, { "cite": "37 S.E. 2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "126" } ], "opinion_index": 0 }, { "cite": "226 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614202 ], "year": 1946, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0135-01" ] }, { "cite": "38 S.E. 858", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1901, "opinion_index": 0 }, { "cite": "128 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659650 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/nc/128/0256-01" ] }, { "cite": "45 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687930 ], "year": 1853, "opinion_index": 0, "case_paths": [ "/nc/45/0221-01" ] }, { "cite": "99 S.E. 401", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1919, "pin_cites": [ { "page": "402" } ], "opinion_index": 0 }, { "cite": "177 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654678 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/177/0448-01" ] }, { "cite": "8 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275576 ], "year": 1820, "opinion_index": 0, "case_paths": [ "/nc/8/0163-01" ] }, { "cite": "25 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686946 ], "year": 1842, "opinion_index": 0, "case_paths": [ "/nc/25/0134-01" ] }, { "cite": "40 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2101547 ], "weight": 2, "year": 1847, "opinion_index": 0, "case_paths": [ "/nc/40/0111-01" ] }, { "cite": "65 S.E. 2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "parenthetical": "\"bodily heirs . . . then surviving.\"" } ], "opinion_index": 0 }, { "cite": "234 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617121 ], "year": 1951, "pin_cites": [ { "parenthetical": "\"bodily heirs . . . then surviving.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0034-01" ] }, { "cite": "178 S.E. 2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "parenthetical": "\"my surviving heirs\"" } ], "opinion_index": 0 }, { "cite": "278 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559549 ], "year": 1971, "pin_cites": [ { "parenthetical": "\"my surviving heirs\"" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0001-01" ] }, { "cite": "90 S.E. 513", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "172 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254274 ], "year": 1916, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/172/0466-01" ] }, { "cite": "114 S.E. 482", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 4, "year": 1922, "pin_cites": [ { "page": "484" }, { "page": "486" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "184 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270558 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/184/0375-01" ] }, { "cite": "86 S.E. 2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "241 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615837 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/241/0629-01" ] }, { "cite": "182 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567058 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0341-01" ] }, { "cite": "160 S.E. 2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "273 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575858 ], "year": 1968, "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0615-01" ] }, { "cite": "143 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "265 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574956 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0218-01" ] }, { "cite": "97 S.E. 2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "246 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624704, 8624742 ], "year": 1965, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0121-01", "/nc/246/0121-02" ] }, { "cite": "79 S.E. 2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "239 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626292 ], "year": 1954, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0215-01" ] } ], "analysis": { "cardinality": 1002, "char_count": 27727, "ocr_confidence": 0.633, "pagerank": { "raw": 1.3801134042852116e-07, "percentile": 0.6403440895588893 }, "sha256": "31b4c0ae1961c6fae257ba44c77d7c4d6cb84f3150e2d0552a85845d1ebeeed0", "simhash": "1:4225c774e42fe852", "word_count": 4851 }, "last_updated": "2023-07-14T22:57:34.654413+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SAMUEL WHITE, MARY WHITE RAMSEY, GEORGE LYNCH and LUCILLE LYNCH THOMPSON v. BILLY ROY ALEXANDER and IYA WHITE" ], "opinions": [ { "text": "EXUM, Justice.\nThe Court of Appeals erred insofar as it decided that the testatrix\u2019s son, Sam, was to share in the estate devised ultimately \u201cto my heirs,\u201d a class which it properly held under this will should be fixed and identified at testatrix\u2019s death.\nIn construing this will we are well reminded that:\n\u201cThe epigram of Sir William Jones over 250 years ago \u2018no will has a brother\u2019 has been often quoted by the courts. (Citations omitted.) Two wills rarely use exactly the same language. Every will is so much a thing of itself, and generally so unlike other wills, that it must be construed by itself as containing its own law, and upon considerations pertaining to its own peculiar terms.\u201d Gatling v. Gatling, 239 N.C. 215, 221, 79 S.E. 2d 466, 471 (1954).\nOur purpose here is to determine the testatrix\u2019s intent \u201cfrom a consideration of the will itself and the circumstances confronting [her]. To ascertain such intent, \u2018we must consider the instrument as a whole and give effect to such intent unless it is contrary to some rule of law or at variance with public policy.\u2019 Trust Co. v. Taliaferro, 246 N.C. 121, 127, 97 S.E. 2d 776, 780 [1957].\u201d Trust Co. v. Bass, 265 N.C. 218, 143 S.E. 2d 689 (1965).\nWe hold that this will, properly construed, created estates in the subject property as follows: first, a life estate in testatrix\u2019s son, Sam. Testatrix clearly used the words \u201cheirs of his [Sam\u2019s] body\u201d to mean Sam\u2019s children. She later provided, \u201cThe said land so devised to my said son and to his said wife in case my said son shall have no child or children . ... \u201d (Emphasis added.) Without question \u201cheirs of his [Sam\u2019s] body\u201d meant, in testatrix\u2019s mind, Sam\u2019s children, if any. The Rule in Shelley\u2019s Case, the doctrine of merger, and General Statute 41-1 do not operate to give Sam a fee simple, defeasible or absolute. McRorie v. Creswell, 273 N.C. 615, 618, 160 S.E. 2d 681, 683 (1968). Next Sam\u2019s widow, Emma, got a contingent life estate. Finally we hold the language \u201cand at her [Sam\u2019s widow\u2019s] death or remarriage, the same shall go to my heirs\u201d created a remainder in the heirs of the testatrix, except Sam, contingent upon Sam\u2019s death without having had a child. This contingent remainder, assignable and transmissible, Jernigan v. Lee, 279 N.C. 341, 182 S.E. 2d 351 (1971); Seawell v. Cheshire, 241 N.C. 629, 86 S.E. 2d 256 (1955), passed in interest at testatrix\u2019s death to her two daughters and only heirs other than Sam in equal shares. At the death of each daughter that daughter\u2019s respective interest passed to her children. Thus Sam White, Mary White Ramsey, and Everette\u2019s widow, Iva, are each entitled to a one-sixth undivided interest; and George Lynch and Lucille Lynch Thompson are each entitled to a one-fourth undivided interest in the property.\nThe general, long established rule of testamentary construction is that a class of persons described as testator\u2019s heirs who are given an estate in remainder are those persons who in fact and in law constitute the heirs of the testator at testator\u2019s death. The class is fixed and determined at that time. Whitty v. Whitty, 184 N.C. 375, 114 S.E. 482 (1922). \u201cIt is undoubtedly the general rule that when a testator, after a prior limitation of his property by will, makes in present terms, a disposition of the same in remainder to his own heirs or right heirs, these heirs, nothing else appearing, are to be ascertained and determined on as of the time of his death. This is not only the primary meaning of the word heirs, but the position is said to be favored by the courts because in its tendency it hastens the time when the ulterior limitation takes on a transmissible quality.\u201d Jenkins v. Lambeth, 172 N.C. 466, 468, 90 S.E. 513, 514 (1916).\nThis rule of construction is to be followed \u201cin the absence of a contrary intention clearly expressed in the will, or to be derived from its context, read in the light of the surrounding circumstances.\u201d Whitty v. Whitty, supra at 378, 114 S.E. at 484. A different result follows where \u201cthe testator, in making an ulterior disposition of property after a particular life estate, uses such expressions as \u2018to such of my sons as may be living at their mother\u2019s death,\u2019 or \u2018surviving at her death,\u2019 or \u2018to the representatives of such as may have died before her death,\u2019 showing clearly that not only the enjoyment of the remainder, but also the right to take it was intended to be postponed until after the expiration of the preceding life estate.\u201d Witty v. Witty, supra at 381, 114 S.E. at 486. For applications of a survivor-ship condition see Kale v. Forrest, 278 N.C. 1, 178 S.E. 2d 622 (1971) (\u201cmy surviving heirs\u201d) and Trust Co. v. Waddell, 234 N.C. 34, 65 S.E. 2d 317 (1951) (\u201cbodily heirs . . . then surviving.\u201d)\nHere, however, as in Witty, we have no such expression in the instrument. The remainder after the life estates is simply to \u201cgo to my heirs.\u201d This means \u201ca division among those who were the heirs of the [testatrix] at [her] death, and who took in right at that time . . . . \u201d Witty v. Witty, supra at 381-82, 114 S.E. at 486.\nThat the remainder to the testatrix\u2019s heirs is contingent upon Sam\u2019s death without having had a child does not, as plaintiffs contend, relying on General Statute 41-4, require that testatrix\u2019s heirs be determined as those persons who would have fitted this description had testatrix died immediately after Sam. The statute, enacted in 1827, provides:\n\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, or offspring, or descendant, or other relative, shall he held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or horn to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it .... \u201d (Emphases added.)\nAt common law and before the enactment of this statute gifts over upon the condition of someone\u2019s dying without issue or without heirs were void for remoteness. Weeks v. Weeks, 40 N.C. 111 (1847). It was thought that the condition of the gift over meant the failure of issue at some indefinite time, whenever it might happen. Brown v. Brown, 25 N.C. 134 (1842). (This rule was said by Taylor, C.J., in Davidson v. Davidson, 8 N.C. 163 (1820), to be \u201chighly technical and refined\u201d but to have been derived from the English statute de donis and firmly fixed in the law of property.) In order to save such gifts and comply, insofar as possible, with the obvious intent of the testator, our Court, before the enactment of General Statue 41-4, construed the contingency to mean dying during the life of the testator or some subsequent period provided for in the will such as a life estate, some period prescribed for division, arrival at full age, or some similar period. If death without issue or heirs occurred during either of these periods, the gift over was sustained; otherwise it was void. Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401 (1919). For an early application of this rule of construction see Hilliard v. Kearney, 45 N.C. 221 (1853) construing a will written in 1775.\nThe purpose of the statute was and is to save gifts over upon the contingency of someone\u2019s dying without issue even if the contingency occurs after the death of the testator or after some estate or period subsequent to his death. The words in the statute that the gift over \u201cshall be ... a limitation to take effect when such person dies not having such heir or issue, or child . . . living at the time of his death, or born to him within ten lunar months thereafter\u201d mean simply that the interest will be sustained and will pass in possession when and if the contingency, i.e., dying without issue, occurs, even if this event takes place after the death of the testator or grantor or after some intervening estate or period following his death. Patterson v. McCormick, supra at 452, 99 S.E. at 402; Sain v. Baker, 128 N.C. 256, 38 S.E. 858 (1901). These words do not mean that a determination of those persons who take the interest must necessarily wait until the event occurs. At what point in time those persons are determined remains a question of the testator\u2019s intent.\nWe are advertent to language in some of our cases that because of G.S. 41-4: \u201cTo determine the effectiveness of the limitation over the roll must be called as of the death of the first taker,\u201d Turpin v. Jarrett, 226 N.C. 135, 136, 37 S.E. 2d 124, 126 (1946), and \u201cit cannot be determined who will take under the limitation until the death of [the first taker] . \u201d Rees v. Williams, 164 N.C. 128, 132, 80 S.E. 247, 249 (1913). In neither Turpin nor numerous cases cited therein to support the quoted statement, including Rees, was the question who among a class of ultimate takers had an interest or when the members of such a class should be determined. In both Turpin and Rees the sense of the expressions quoted was that until the death of the first taker with or without issue it could not be determined which among several possible classes of ultimate takers, rather than who among the same class, would have an interest. To the same effect see Ziegler v. Love, 185 N.C. 40, 115 S.E. 887 (1923). For clear holdings that membership of a class of re-maindermen described simply as testator\u2019s heirs, or the like, which takes upon the contingency of death without issue, is determined at testator\u2019s death see Sanderlin v. Deford, 47 N.C. 74 (1854); Weeks v. Weeks, supra; Jones v. Oliver, 38 N.C. 369 (1844).\nTestatrix did not, however, intend for her son Sam to be included among the class of remaindermen she described as \u201cmy heirs.\u201d She clearly limits his interest to a life estate. She intended his child or children, had there been any, to have had the fee by clear implication. McRorie v. Creswell, supra; Finch v. Honeycutt, 246 N.C. 91, 97 S.E. 2d 478 (1957). Sam\u2019s child, had one been born, would have taken a vested remainder in fee subject to open to let in other children as they might have been born. Blanchard v. Ward, 244 N.C. 142, 92 S.E. 2d 776 (1956). Only if Sam died without having had a child would Sam\u2019s widow get a life estate, and \u201cmy heirs\u201d take the remainder. When testatrix envisioned that event, as she must have done, her thoughts naturally would have turned to her two daughters, her only other heirs expectant, and their progeny. They, consequently, are the persons she intended to benefit by the ultimate estate in remainder. Sam who, when and if the remainder took effect in possession, would be dead without having had a child and whose widow would have had a life estate, was clearly not in testatrix\u2019s contemplation when she used the expression \u201cto my heirs.\u201d\nThis result finds support in Trust Co. v. Bass, supra, and Van Winkle v. Berger, 228 N.C. 473, 46 S.E. 2d 305 (1948). Trust Co. while multifaceted and different in many respects from this rather simple case factually, dealt with a testamentary trust from which testator\u2019s only son was to receive the income for life and such of the principal as the trustee in its discretion saw fit to invade for his benefit. At son\u2019s death the principal, if any, was to be paid over to testator\u2019s \u201cnext of kin.\u201d Similar provisions were made for a supposed \u201cgranddaughter\u201d (actually a foster child of testator\u2019s son) except when she reached 25 years of age she was to take the corpus of her trust which she did. This Court held first, that in accordance with a rule of construction \u201cgrown reverend by age\u201d the words \u201cnext of kin\u201d meant testator\u2019s nearest of kin and not his heirs. Testator died survived by his son, his only authentic lineal descendant, the foster granddaughter and collateral relatives. The Court held next that testator, having made detailed and adequate provisions for both his son and the foster granddaughter, did not intend either of them to be included in the class, \u201cmy next of kin.\u201d\nIt is true that in Trust Co. the Court also held in determining which of testator\u2019s collateral relatives would take the corpus, that the class, \u201cmy next of kin,\u201d should be determined as if testator had died immediately after his son. This construction was based primarily on the circumstance that his son would have been the sole member of the class so described had it been determined at testator\u2019s death. The Court said:\n\u201cIn form and phraseology the devise under consideration here is indistinguishable from that in Witty v. Witty, supra, and, but for the fact that the life tenant here was the sole representative of the class, testator\u2019s next of kin, this case would in fact be indistinguishable from Witty v. Witty, supra. This fact, however, makes the difference . . . . \u201d Trust Co. v. Bass, supra at 242, 143 S.E. 2d. at 706.\nFor a similar result see Grantham, v. Jinnette, 177 N.C. 229, 98 S.E. 724 (1919). In the case now before us there are others besides Sam who at testatrix\u2019s death fit the description \u201cmy heirs.\u201d It is indeed, as we have said, these very others and their progeny whom, it seems clear, testatrix had in mind when she used the words, \u201cmy heirs.\u201d\nIn Van Winkle v. Berger, swpra, a testamentary trust was established from which testator\u2019s three daughters were to receive income for life. Each daughter was also allotted a share of the testator\u2019s residuary estate. The testamentary trust also provided that if any daughter should die leaving no issue her one-third share of the principal should go into the residuary estate to be distributed according to provisions dealing with it. One of testator\u2019s daughters, Ella, died without issue but testate and bequeathed all of her property to one Diehle. The Court held that testator did not intend for Ella to share in pne-third of the corpus of the testamentary trust from which she derived a life income and which passed to the residuary estate upon Ella\u2019s death without issue; consequently Diehle was not entitled to it. The Court said, \u201cThat Ella . . . could take an interest in the will virtually created by the contingency of her own death, involves a formidable legal paradox which appellants seem to circle but not surmount.\u201d 228 N.C. at 478, 46 S.E. 2d at 308.\nOther jurisdictions have likewise excluded the holder of a preceding estate who was one of testator\u2019s heirs from a class described as \u201cheirs\u201d or the like of the testator to whom a remainder or executory interest was given. L. Simes and A. Smith, The Law of Future Interests \u00a7 735 (2d ed. 1956); Annot. 30 A.L.R. 2d 393, 436-441 (1953).\nThe Court of Appeals relied on Baugham v. Trust Co., 181 N.C. 406, 107 S.E. 431 (1921), for the proposition that heirs means the testatrix\u2019s legal heirs at her death including her son Sam in which case both defendants would take an interest. Plaintiffs rely on Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863 (1914), distinguished by the Court of Appeals, for the proposition that testatrix\u2019s heirs ought to be determined as if she died immediately after her son Sam in which case both defendants would be excluded and testatrix\u2019s four grandchildren would each take a one-fourth undivided interest. This is the construction some courts have utilized, but which we reject here, to avoid including the holder of a precedent estate among a class of re-maindermen or executory devisees described as testator\u2019s heirs, or the like, when it was apparently the testator\u2019s intent not to include him and when he would have been included had the class been determined in its true legal sense as being those who take, as in intestacy, upon testator\u2019s death. Annots., 30 A.L.R. 2d 393, supra; 169 A.L.R. 207 (1947); 127 A.L.R. 602 (1940); 49 A.L.R. 174 (1927); L. Simes and A. Smith, The Law of Future Interests \u00a7 735, n. 19 (2d ed. 1956).\nBoth Baugham and Burden differ in material ways from this case. In Baugham, in the words of the Court, testator devised lands \u201cto all his children, with provision that if one or more die without issue the interests of such children so dying shall vest in the survivors, and if all the children die without issue then to the heirs of the testator.\u201d At his death testator was survived by his widow, three daughters and two sons, all of whom joined in a partition proceeding. One of the sons, Seth, acquired a lot in this proceeding which he apparently thereafter wanted to sell or mortgage. The question was whether Seth owned an indefeasible or defeasible fee. The Court applied the general rule that \u201cthe death of testator is the time at which members of a class are to be ascertained in case of a gift to the testator\u2019s heirs, next of kin, or other relatives . \u201d and held that since testator\u2019s heirs had all joined in the partition proceeding by which Seth acquired his lot, he held an indefeasible fee. In Baugham, all testator\u2019s children were given by will the same interests. No question arose, nor could it have, regarding whether one or less than all the children should be excluded from the class to which the remainder was given. Either all of them should have been excluded or none. The Court decided to exclude none.\nIn Burden, on the other hand, there was a devise to a son, John, in fee simple \u201cprovided he has a child or children; but if he has no child, then I give him the said land during his life, and to his widow if he leaves one surviving, during her widowhood, and then the said land shall go in equal portions to my heirs at law . ... \u201d Testator died survived by six daughters, a granddaughter (child of a daughter who predeceased him) and John. These daughters, their spouses, and the granddaughter conveyed their interests to John. John, a widower with no child ever having been born to him, contracted to convey the lands devised. This Court held that since those persons who were to take the executory devise upon John\u2019s death without having had a child could not be determined until John\u2019s death, John held only a defeasible fee. Burden, as the Court of Appeals noted, is distinguishable in that John initially obtained a defeasible fee rather than a life estate. It is pointed out in L. Simes and A. Smith, The Law of Future Interests \u00a7 735 (2d ed. 1956) that:\n\u201cIf the preceding estate is for life, and if the holder of that estate is not the sole heir, it is still possible to apply the usual rule of determining heirs at the testator\u2019s death and yet imply an exception to the class of heirs [as to the life tenant] ....\n\u201cWhen the preceding estate is a defeasible fee, and the gift to the heirs is in the form of an executory interest, it is much easier to decide that the holder of the preceding estate is not to participate in the executory interest .... Accordingly, most courts are willing here [when the preceding holder is the sole heir] to determine the heirs as of the expiration of the prior interest. The same result probably follows even when [the preceding holder] is not the sole heir at testator\u2019s death, but is merely one of the class.\u201d\nEven so we question as did the Court in Baugham the soundness of the result in Burden. A different result upon like facts might follow today.\nWe hold, then, that when testatrix devised the contingent remainder \u201cto my heirs\u201d she intended to refer to all who at her death would be her legal heirs in the technical sense with the exception of her son, Sam, for whom and for whose family she had made other provisions. Thus when she died the contingent remainder passed in equal shares to her two daughters, Hattie and Cora. At Hattie White\u2019s death her one-half interest was devised to her three children, Sam, Mary and Everette. Everette\u2019s share at his death was inherited by his widow, Iva White. Thus the plaintiffs, Samuel White and Mary White Ramsey, and the defendant Iva White are each entitled to a one-sixth undivided interest in the land. Cora Lynch\u2019s one-half interest was inherited at her death by her two children, George Lynch and Lucille Lynch Thompson, the other plaintiffs herein, who are each entitled to a one-fourth undivided interest in the land. The other defendant, Billy Roy Alexander, the only heir of Sam Stokes\u2019 widow, Emma, is not entitled to any interest in the land.\nThe Court of Appeals erred in holding that Billy Roy Alexander was entitled to an interest and in determining the quantities of undivided interests to which the other parties were entitled. The case is, therefore, remanded to the Court of Appeals to the end that it be remanded to the Superior Court for entry of judgment in conformity with our opinion.\nAfter the preparation of this opinion and before it was filed the plaintiffs Ramsey, Lynch, and Thompson moved to substitute one Freda White for Samuel White, one of the plaintiffs, suggesting to the Court in their motion the death of Samuel White on August 23, 1975, a resident of Medina County, Ohio. The motion further alleged that Freda White is the surviving widow of Samuel White and that by will, a certified copy of which was attached to the motion, filed in the Probate Division of the Court of Common Pleas of Medina County, Ohio, Samuel White named Freda White his executrix and devised to her all of his real estate thereby making her his personal representative and successor in interest of his real estate. By order of the Court on May 3, 1976, Freda White was permitted to join in this action as a party-plaintiff for the purpose of asserting in the Superior Court such interest as she may have. Upon remand to it the Superior Court shall make due inquiry into the claim of Freda White. If it finds that she is in fact and in law the successor in interest of Samuel White it shall in its judgment allot to her all right, title and interest in the real property in question to which by virtue of this opinion Samuel White would otherwise have been entitled.\nError and remanded.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Adams, Hendon & Carson, P.A., by James Gary Rowe for plaintiff appellants.", "Paul Young and Morris, Golding, Blue and Phillips, by James F. Blue III, for defendant appellee Billy Roy Alexander." ], "corrections": "", "head_matter": "SAMUEL WHITE, MARY WHITE RAMSEY, GEORGE LYNCH and LUCILLE LYNCH THOMPSON v. BILLY ROY ALEXANDER and IYA WHITE\nNo. 74\n(Filed 14 May 1976)\n1. Wills \u00a7 33\u2014 devise to life tenant \u2014 remainder upon death without heirs of body\nWhere testatrix devised property to her son for life with the provision that \u201cif he shall die without heirs of his body\u201d the son\u2019s widow should receive a life estate and the remainder should go \u201cto my heirs,\u201d the Rule in Shelley\u2019s Case, the doctrine of merger and G.S. 41-4 did not operate to give the son a fee simple, defeasible or absolute, and the son received only a life estate, since it is clear that the testatrix used the words \u201cheirs of his body\u201d to mean the son\u2019s children.\n2. Wills \u00a7 43\u2014 heirs of testator \u2014 determination at testator\u2019s death\nA class of persons described as testator\u2019s heirs who are given an estate in remainder are generally those persons who in fact and in law constitute the heirs of the testator at testator\u2019s death.\n3. Wills \u00a7 35\u2014 contingent remainder to testatrix\u2019s heirs \u2014 death without having child \u2014 time for determining heirs \u2014 effect of G.S. 41-4.\nWhere the remainder to testatrix\u2019s heirs is contingent upon the death of the life tenant without having had a child, G.S. 41-4 does not require that testatrix\u2019s heirs be determined as those persons who would have fitted this description had testatrix died immediately after the life tenant.\n4. Wills \u00a7 35\u2014 limitations on failure of issue \u2014 purpose of G.S. 41-4\nThe purpose of G.S. 41-4 is to save gifts over upon the contingency of someone\u2019s dying without issue even if the contingency occurs after the death of the testator or after some estate or period subsequent to his death.\n5. Wills \u00a7 35\u2014 limitations on failure of issue \u2014 construction of G.S. 41-4\nThe words in G.S. 41-4 that a gift over \u201cshall be ... a limitation to take effect when such person dies not having such heir, or issue, or child . . . living at the time of his death, or born to him within ten lunar months thereafter\u201d means simply that the interest will be sustained and will pass in possession when and if the contingency, i.e., dying without issue, occurs even if this event takes place after the death of the testator or grantor or after some intervening estate or period following his death; these words do not mean that a determination of those persons who take the interest must necessarily wait until that event occurs.\n6. Wills \u00a7 43\u2014 devise to son for life, remainder to heirs \u2014 exclusion of son as heir\nWhere testatrix devised property to her son for life with the provision that \u201cif he shall die without heirs of his body,\u201d the son\u2019s widow should receive a life estate and the remainder should go \u201cto my heirs,\u201d the testatrix intended the contingent remainder \u201cto my heirs\u201d to refer to all who at her death would be her legal heirs in the technical sense with the exception of her son, for whom and for whose family she had made other provisions.\nOn certiorari to review the decision of the Court of Appeals, 24 N.C. App. 23, 209 S.E. 2d 876 (1974), which affirmed a judgment for defendants entered by Smith, J., at the March 25, 1974 Session of Buncombe Superior Court. This case was docketed and argued as No. 102 at the Spring Term 1975.\nThis action was brought by plaintiffs under the Uniform Declaratory Judgment Act to have the will of Harriet M. Stokes construed. The pertinent provisions of the will are:\n\u201cI . . . devise ... to my son, Samuel Stokes . . . land owned by me consisting of thirty-six and three-fourths (36-3/4) acres ... to be his to use and enjoy during his lifetime, and if he shall die without heirs of his body, then it is my will and desire, and I hereby direct that at the death of my son, without heirs, if his wife, Emma Stokes, shall be living that she shall use and enjoy the said land during her widowhood, and at her death or remarriage, the same shall go to my heirs. The said land so devised to my said son and to his said wife in case my said son shall have no child or children shall be chargeable with the reasonable expense for the support of my husband, Julius Stokes . . . . \u201d\nThese facts are not in dispute: Harriet Stokes died on March 25, 1925 survived by her husband, Julius, who died on June 3, 1939; her son, Sam; and two daughters, Hattie and Cora. Sam Stokes died intestate March 24, 1970, without children being born to or adopted by him, survived by his widow, Emma, who died intestate August 22, 1971, survived by her nephew. Hattie Stokes White died testate December 15, 1961, devising her estate to her three children. Cora Stokes Lynch died intestate May 26, 1971, survived by two children.\nThe plaintiffs Sam White and Mary White Ramsey are the surviving children of testatrix\u2019s daughter Hattie. The plaintiffs George Lynch and Lucille Lynch Thompson are the children of testatrix\u2019s daughter Cora. The defendant Iva White is the widow of Hattie\u2019s son, Everette, who died intestate in October, 1964, without children being born to or adopted by him. The defendant Billy Roy Alexander is the nephew and only heir of Sam Stokes\u2019 widow Emma.\nThe plaintiffs contend that they are each entitled to a one-fourth undivided interest in the land devised by the testatrix. Defendants, on the other hand, contend that undivided interests in this land ought to be allotted as follows: one-third to Billy Roy Alexander, one-ninth each to Iva White, Mary White Ramsey, and Sam White; and one-sixth each to George Lynch and Lucille Lynch Thompson. The trial judge adopted the defendants\u2019 view of the matter and the Court of Appeals affirmed.\nAdams, Hendon & Carson, P.A., by James Gary Rowe for plaintiff appellants.\nPaul Young and Morris, Golding, Blue and Phillips, by James F. Blue III, for defendant appellee Billy Roy Alexander." }, "file_name": "0075-01", "first_page_order": 107, "last_page_order": 118 }