Bryan Whitfield had many children. To the elder of these he had made considerable advancements, both of real and personal estate. By his will he also devised to each of his younger children (who had not been advanced) real estate, bank stock, and slaves; and he also devised to his wife real estate, and bequeathed to her a few slaves and stock, provisions, and farming utensils to the value of $1,200; and he also devised and bequeathed to his elder children the estate advanced to them. (394)
The testator, besides the estate so particularly advanced, devised and bequeathed, was seized and possessed of real estate, bank stock, slaves, and other personal property to the value of $80,000.
After the several devises and bequests to his wife and children above mentioned, there came the following clause:
"I leave all my estate not mentioned in this will, both real and personal, except negroes and bank stock, to be sold on twelve months credit, and the money arising from the sale thereof, and the debts due me, after discharging all my just debts, together with my negroes and bank stock, not disposed of by this will, I leave to be divided among all my heirs, agreeable to the statute of distributions of intestates' estates."
The widow dissented from the will, and dower in the real estate was allotted her, but no notice was taken by them of the personal estate.
Upon the clause above recited, various claims were set up: the widow claiming to be entitled as one of the "heirs," according to the statute; the younger children contending that the advancements made during the testator's life should be brought into hotchpot, if the children advanced *Page 184 claimed any part of the residuum; while the older children insisted that the residuum should be distributed without reference to the advancements; or that the specific legacies, as well as advancements, should be taken into account.
The cause was removed to this Court by affidavit. He on whom the law casts an inheritance on the death of the ancestor is designated by the technical word heir. It could not originally be used to designate him on whom the law casts the goods or chattel property, for it cast them on no one; no person was appointed by law to succeed to the deceased ancestor; on his death they (395) became bona vacantia, and were seized by the king on that account, and by him, as grand almoner, applied to pious uses (now considered superstitious), for the good of the soul of their former owner. Hence it is that in the common-law vocabulary there could be found no technical word to designate such successor. After one was pointed out by the statute of distributions the technical word used in regard to inheritances would not answer for that purpose; for very frequently the persons are different, the rules of construction being very different from the canons of descent. The word "heir," therefore, retains its primitive and technical signification when standing alone and unexplained by the context. But as words of every kind, technical as well as others, and particularly when used in last wills, are liable to be varied in their meaning, to meet the intention of those who use them, when shown in an authentic manner the word heir may mean some other person than him on whom the law casts the inheritance in a real estate; and the question is, Whom does it mean, when used in a last will, in reference to personal property?
It is admitted by all that it does not (unless under peculiar circumstances) mean the heir to real estate. By some it is said that it means children; by others, next of kin; and by others, all those who are called to succeed to personal estate by law (the statute of distributions). Those who are in favor of the meaning first mentioned, "children," say that this is its vulgar and common meaning, and as it cannot have its technical one, it must have this. I think that the premises are incorrect, and, even if correct, that the conclusion does not follow. The word heirs, in common conversation, may and very often must be understood to mean children; but this arises not from the word alone, but from the context, the manner and cause of speaking. For a person to say that another has got an heir, or that he has heirs, must unquestionably mean, if the speaker meant anything, that he has a child or children; for, to understand him as communicating something, and at the same (396) time to use the word heir in its extended sense, is next to *Page 185 impossible; for there is not a man in a hundred thousand born without there being some one to succeed to his property, should he die instantly, particularly to personal property, where foreigners are not excluded. Most of us are born with innumerable heirs, if so understood. Unless, therefore, we are speaking of some foreigner just come among us, and then in regard to real property, or some person whose family connection is unknown, or supposed to be unknown, to the person spoken to, children must be presumed to be meant by the speaker by the word heirs; for we are not born with children — they are an after acquisition; all of us do not have them at any time. It would be an absurdity to suppose that the speaker designed to communicate to another, to inform him that another had that which is common to every man in the community when, by not a very strained construction, a sensible and rational meaning can be attributed to the speaker. I think, therefore, that the word heirs, of itself, unaided by anything else, does not mean children, in common or vulgar conversation; although in such conversation it must be so understood, to give to the speaker a rational meaning, or any meaning at all. This arises from what may properly be called the context, the subject; and if the premises are right, I should think the conclusion wrong; for the word was certainly adopted from the law of inheritances, and thereby acquired an analogous meaning, which would by such construction be entirely lost. Others say that it means next of kin, admitting the analogy, and contending that blood connection is an essential constituent in an heir. It is admitted that, by the canons of descent in England, one to succeed as heir must be of the blood of the ancestor; but he is heir not because he is of the blood, but because he is the successor of the estate of the dead man. The law has prescribed blood as a qualification; but the right to succeed, and not the reason wherefore, stamps (397) him with the character of heir. The law prescribed the canon of descent to point out the successor; the person who succeeds is heir, not because he succeeds by this or that rule, but because he succeeds. And at once to put the argument at rest, it may be asked, Does the widow who succeeds to the estate of her deceased husband under the act of 1801 come to the estate by purchase or descent? For she must come in by the one or the other of these two ways; there is no other. It is very clear that she does not come in by purchase; that is, by her own act she is perfectly passive; it is thrown upon her by law, as much as it is thrown upon the uncle, there being no issue, brothers or sisters, or their issue; that is, none whom the law prefers to him. If she does not come in by the purchase, it follows that she comes in by descent. She is, therefore, in such case, the heir of the husband. Yet she is not of his blood.
Mr. Blackstone, in his discussion of the question whether the lord, who comes in by escheat, comes in by descent or purchase, has caused some *Page 186 confusion on this subject. He could find no canon of descent which pointed to the lord as heir to his descent; the lord was passive, at least not active in the character of purchaser, i. e., acquirer, and there was evidently a vague notion floating in his mind that he is not heir, because not of the blood. At length he takes the middle course, the one most apt to be taken by those who are not sure which course is right, and says that he succeeds by a kind of quasi descent, a kind of caducary succession. The fact is that he succeeded to the estate of his tenant by neither; for he succeeded to his estate not at all; the estate of the tenant expired by his death without heirs capable of succeeding him. It expired by the terms of its own limitation; for it was to him and his heirs; when they failed, the lands, not the estate, reverted to the grantor, the lord of whom he held them. The lord took the lands again in virtue of that right of reverter which in law is called a (398) seignory. He comes in, not under or representing the tenant, but above him, and by virtue of a different estate. Exclude the idea of blood, and it is matter of surprise how it could be doubted that the widow is not included in the word heir, when applied to personal property. Her claims to the succession are precisely the same with the next of kin; both unknown to the common law, and both given by the same statute. Why the word heirs should be translated into next of kin cannot be accounted for otherwise than by blending blood connection with heirship; and if the meaning either of children or next of kin is to be received, grandchildren, where there are children, will be excluded; for it is said that grandchildren cannot take under the description of children where there are children, nor under the description next of kin; for grandchildren are notnext whilst there are nearer, and in the statute the evil is guarded against in lineal accession, and in collateral, as far as brothers' and sisters' children; the Legislature being aware that the more remote of kin would be excluded by the nearer, under the description next of kin.
These afford insuperable reasons why the word heir should not be understood to mean either next of kin or children. If, therefore, it neither means next of kin nor children, there can be no objection to giving it a meaning analogous to what is the proper technical meaning of the wordsmutatis mutandis, i. e., they whom the law has appointed to succeed to the personal estate of dead men who make no appointment themselves; as in real estates in such cases, the heir who is appointed by law to succeed the dead man. By this definition all those appointed to take under the statute of distributions are embraced; the law speaks and designates the heirs. Unless this expression is tolerated and permitted to bear this meaning, we shall be totally unable to express the idea without using a phrase instead of a term; for I know of no other term which will *Page 187 convey the idea. Distributee is sometimes used, but scarcely ever without an apology for it; a term of our own coinage, which is not to be found in Johnson's Dictionary, in Jacob's Law Dictionary, nor (399) in any other that I know of. I do not recollect to have seen it in any English work of note, or not of note. As far as I have been able to ascertain, the English authorities warrant this construction; I am very well satisfied that they are not against it. Sir William Grant very lately said he was not, in the case then under consideration, called on to decide it, but that his opinion was, heirs, when applied to personal property, meant heirs quoad the property; and he repeated the same thing in another case.
It is true that there is a case to be found in Ambler (who is said to be not very high authority), decided by the master of the rolls, Sir ThomasClarke, where it is said that heir means children; but the absurdity to which this led him is its own refutation. He first said that heirs meant children; and as grandchildren, where there were children, did not mean children, he excluded the grandchildren. He should have recollected thatnullum simile est idem. When drawing from the likeness he had taken, he should now and then have cast an eye on the original; and the truth is, all who thus translate will be carried into the same absurdity.
Many cases were cited. I will examine a few of the most prominent. In 1 Ves., 84, the testator directed that certain personal property, after the death of his wife, to whom he had given the greater part of his estate (and possibly the whole) for life, should be equally divided among hisrelations, according to the statute of distributions. It was decided that it was not intended by the testator, by the word "relations," to include his wife: first, because the wife is not the relation of the husband — which means blood connection — and I think, properly, the husbands and wives of such, who are by marriage identified with each other; secondly, he had given a life estate in the greater part, and probably all of the same property, which incongruity raised a presumption that he did not intend to include her. It was further said that she was not brought (400) in by the words according to the statute of distributions; that by such reference to the statute he did not intend to point out who was to take, for that he had done before by the word relations; but only how they are to take. I express no opinion on the correctness of this latter part, for it does not affect this case, or this part of it. In 18 Ves., 53, the words are my next of kin, as if I had died intestate. It was held, and very properly, that the widow was not intended by these words; the wife is not kin, i. e., of kind, to her husband. That had been long settled, soon after the statute of Henry VIII., relative to granting administrations. The words, as if I had died intestate, as said above, did not point to the persons who were to take, but to the manner, and they could not *Page 188 enlarge by mere implication the known and definite meaning of the words next of kin. In the same book, p. 49, the words are next of kin or personal representatives. As it is the office and nature of a limited description to control and limit a general one, the general description,"personal representatives," was controlled and limited by the more limited and restricted one, "next of kin"; at least, that is the reason assigned.Vaux v. Henderson, decided in 1806, by Sir William Grant, to be found in Jacobs Walker, 387, in a note, was not, as I conceive, upon the point; the question there was not what particular individuals composed the heirs, or, more properly, were comprised under the description, but which class was entitled. The question arose in Coutts' will, who had bequeathed to Vaux £ 200, and in case of his death before him, to Vaux's heirs. Vaux died before him. The contest was between those who answered the description at Coutts' death and those who did so at Vaux's death. The reporter called them the next of kin, a phrase, no doubt, of his own, as the question who they were did not arise. The contest was between classes, and not individuals. A term, therefore, was used different from the purpose, without any regard to the point whether (401) it embraced all, and excluded all, and excluded none of those who contested the question. The words came nearer to it than any other words which he could well use; for, as was said before, there is no technical word, and he would dislike, as a lawyer, to use the word heirs when speaking of personal property. It was quite natural for him to use the word which embraced the greatest number of individuals composing the class, although it might exclude some; for it did not interfere with the question the note was designed to illustrate. The case proves nothing. For aught that appears, the widow might have been named in each class; if she was named in one, she was in the other. Her claim, except as to the quantum, possibly by there being more in one class than the other, was not affected by the question.
And as a confirmation that I am right in this view of the case, the decision was made by Sir William Grant, whose opinion I have before stated.
I must not pass over Whitehurst v. Pritchard, 5 N.C. 383, in the late Supreme Court, in which decision I participated, and which principle I think is at variance with the opinion here delivered. I have no hesitation in saying that the decision was wrong. It was decided without argument and on the authority of a case in Pere Williams, which I confess I did not then understand.
Upon the whole, I am satisfied that this testator meant by the words "tobe divided among all my heirs agreeable to the statute of distributions ofintestates' estates," to call to the succession all those whom the law appoints to succeed to the personal estate of a dead man, in default *Page 189 of his having made an appointment himself; and that his widow, in this case, is one of them. Upon the point of bringing advancements into account, after much hesitation, I am of opinion that the property passing under that clause in his will was not to be affected by any disposition which he had at any time made of any other property; that the statute of distributions was referred to to designate who he meant by the word heirs, and to point out the manner of the division of that (402) property.
I think that the widow has abandoned her claim to the $1,200. It is land; it was given in lieu of the land. Taking dower satisfies for all claims for land. She cannot have her full share of the land and that which was intended to make her share a full one.
The master of the court will take an account of the personal estate, in default of the parties appointing some one to do it; and in either case a report will be made to this Court.
The lands being directed to be sold and converted into money, are considered in this Court as personal estate.
The costs to be paid out of the fund.
By the Court, Decree accordingly.
Cited: Stow v. Ward, 12 N.C. 68; Ricks v. Williams, 16 N.C. 10;Henry v. Henry, 31 N.C. 280; Brown v. Brown, 37 N.C. 310; Freeman v.Knight, 37 N.C. 76; Radford v. Radford, 41 N.C. 498; Brothers v.Cartwright, 55 N.C. 116; May v. Lewis, 132 N.C. 117; Price v. Griffin,150 N.C. 527.