Elsie Johnson WRIGHT et al.
v.
William A. VADEN, Trustee for the beneficiaries under the Will of the late W. W. Davis, deceased, et al.
No. 770.
Supreme Court of North Carolina.
January 14, 1966.*33 McMichael & Griffin, Reidsville, for plaintiff appellants.
Charles W. Campbell, Reidsville, guardian ad litem for Jean Johnson Wright, and others, defendant appellees.
SHARP, Justice.
This action, being for the construction of a will, should have been brought in Gaston County where the will was admitted 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 § 804 (1956).
The question presented by this appeal is whether, in the devise of the remainder after her death, the words "to the children or other lineal descendants of said Elsie May Johnson" are words of purchase, or words of limitation which bring the devise within the rule in Shelley's Case. (Emphasis added.)
*34 "The rule in Shelley's 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.'" Crisp v. Biggs, 176 N.C. 1, 2, 96 S.E. 662.
See 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. "The 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.'" Martin v. Knowles, supra, 195 N.C. at 430, 142 S.E. at 314.
Without doubt, testator intended that Elsie May Johnson (Wright) should take only a life estate in his property. If, however, the rule in Shelley's Case is applicable, she is entitled to the entire corpus of testator's estate, for it operates "`as a rule of property without regard to the intent of the grantor or devisor.'" 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.
In considering the applicability of the rule in Shelley's 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 § 648 (2d Ed.1916); Black, Law Dictionary 1399 (4th Ed.1951); Ballentine, Law Dictionary 1369-70 (2d Ed. 1948); 96 C.J.S. Wills § 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.C. 1011, 1016, 22 L.R.A. 598; 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
"which 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 `heirs' or the `heirs of the body' of A are words of limitation and not words of purchase, it simply means that `heirs' or the `heirs of the body' 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." Block, The Rule in Shelley's Case in North Carolina, 20 N.C.L.Rev. 49, 50 (1941).
Plaintiffs contend that the devise "to the children or other lineal descendants of said Elsie May Johnson" 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.
It 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's Case § 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. "When 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." Faison v. Odom, 144 N.C. 107, 109, 56 S.E. 793, 794. Accord, In re Will of Wilson, 260 *35 N.C. 482, 133 S.E.2d 189; Moore v. Baker, supra; Bobbitt v. Pierson, 193 N.C. 437, 137 S.E. 160; Hutton & Bourbonnais Co. 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.
"`Thus, 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.'" Martin v. Knowles, supra, 195 N.C. at 430, 142 S.E. at 314.
In 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 "or other lineal descendants" 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, "at there death I want the place to go to there children & so onI would love for it to always be the Spain place." This Court was of the opinion that the phrase & so on, coupled with her expressed desire "for it to always be the Spain place," indicated testatrix' intention that each succeeding generation should take the property. The Court held, therefore, that the Wilson language was equivalent to "heirs of the body." The result was that, under the rule in Shelley's Case and the doctrine of merger, the nephews and grandnephews 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 314-315.
In the instant case, however, we do not think the superadded words "or other lineal descendants * * * to have and to hold the same to them and their heirs, executors and administrators absolutely" 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's 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's share. As the "absolute" 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 "who take generally, without exception, as a class of inheritable persons." 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 "children or other lineal descendants" are words of purchase, and the rule in Shelley's Case has no application.
We 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.
The judgment below is
Affirmed.