Opinion
December Term, 1825.
1. A devises lands to J. W. and his wife during their lives, and to the longest liver of them, and also bequeaths to them certain slaves, etc., for their lives as aforesaid; and after their decease he gives said property, real and personal, unto the heirs of their bodies lawfully begotten to be equally divided among them, to them and their heirs forever. J. W. and wife are tenants for life only, and the heirs of their bodies take an estate in fee in the lands in remainder as purchasers. The remainder is contingent, and, on the decease of the surviving donee for life, vests in such persons as are heirs of the bodies of J. W. and wife. A child, therefore, of J. W. and wife, who dies in the lifetime of the surviving donee, had no estate in the lands.
2. According to the intent of the testator, the personal property, on the decease of the surviving donee for life, goes over with the lands to the remaindermen; the heirs of the body of J. W. and wife take an absolute property in the personalty on the decease of the surviving donee for life, and the executor or assignee of a child of J. W. and wife, dying before the wife, has no interest in the personalty.
THIS bill was filed in 1823 for foreclosure of a mortgage. Ambrose Knox, by his will duly executed, devised the use and occupation of four-fifths of his plantation, etc., to John Wyatt and Parthenia, his wife, during their natural lives, and to the longest liver of them; and he also bequeathed to them the use of certain slaves and their increase during their natural lives as aforesaid; and further, during their lives as aforesaid, the use of all his stock and household furniture and plantation utensils of whatever kind now in their possession; and after their decease he gives and bequeaths all and singular the property, both real and personal, above mentioned (for their use during their lives) unto the heirs of their bodies lawfully begotten, to be equally divided among them, to them and their heirs forever. The testator died in 1796. Upon his death, John Wyatt entered upon the lands, and had possession of the personalty until 1802, when he died; his widow, surviving him, took possession of the real and personal estate, and continued it (228) during her life. In 1804, William Wyatt, one of the children of John and Parthenia, by deed mortgaged to the complainants all his interest in the lands and slaves mentioned in the above devise and bequest. William Wyatt died in 1817, and was survived by his mother, Parthenia, who departed this life in 1821. The bill was filed against the defendants, who were the children of William Wyatt, and were his heirs and distributees. On the death of Parthenia, they had taken possession of the land and slaves mentioned in the mortgage; they were the heirs of the body of John and Parthenia, and by their answers insisted that William Wyatt had nothing in the premises in 1804 when he executed the mortgage, and that on the death of Parthenia the lands belonged to them, either under the will of Ambrose Knox or by descent from Parthenia, and that the slaves were their property either under the said will or as the distributees of Parthenia. The sole question in the case was whether William Wyatt had, in 1804, any interest in the lands and slaves. The court below being of opinion that he had not, dismissed the bill of the complainants with costs, from which they appealed.
Gaston for appellants.
Hogg for appellees.
That the testator intended John Wyatt and his wife to have no more than the enjoyment of the subject devised, during their lives and that of the longest liver, seems evident from the terms he uses in the will. He "lends the use and occupation" of the plantation to them "during their natural lives, and to the longest liver," and he "leaves them the chattel property during their lives as aforesaid"; (249) thus showing his wish that they should be restrained from the power of disposing of the land, so as to defeat the ulterior devise to their heirs. He then provides that after their decease all the property thus given shall go to the heirs of their bodies lawfully begotten, to be equally divided among them and their heirs forever.
It is argued on the part of the defendants that whatever the testator's intent might have been, yet the legal operation of the devise was to give an estate for life to John Wyatt and his wife, and an immediate remainder to their heirs, and that in such a case the rule in Shelley's case applies, and vests in the ancestors an estate in fee simple.
I think it evident that the words "heirs of their bodies," as used in this will, were designed to secure the estate in the first place to the descendants of John and Parthenia, and to make their issue the stock or root of the future succession, since if they had both died without leaving such issue, it would have contravened the intent of the testator to suffer the property to devolve on their collateral heirs. Upon the death of the devisees it would have vested in their lineal descendants as tenants in common, but the design of the will having taken effect, it would be an absolute estate in such children or grandchildren, descendible to their heirs general.
According to the authorities, "heirs of the body" have been held to be words of purchase, when the testator hath superadded fresh limitations, and grafted other words of inheritance upon the heirs to whom he gives the estate, thereby showing that those heirs were meant by the testator to be the stock of a new descent. Where the heirs are thus made ancestors it is evident that the terms "heirs of the body" are merely descriptive of the persons intended to take, and import such sons and daughters of the tenant for life as shall also be heirs of his body. This exception to the rule in Shelley's case is well established by the cases (250) referred to, particularly Archer's case, 1 Rep., 55, and Lisle v. Gray and Lowe v. Davies.
Although it appears plain to my apprehension that the heirs take as purchasers, yet I think it unnecessary to say much more on this point, because it can make no difference in the decision of the cause, since in neither case could William Wyatt become entitled to anything during the lifetime of his parents.
There are not on the face of the will any sufficient indications that the testator meant to use the word "heirs" in any other than its technical sense, that is this, those who should answer the description upon the death of the ancestor, until which event it must be unknown who would be his heirs. On the contrary, the will devises it to the heirs after the decease of the father and mother, and it is consequently a contingent remainder to those who should be heirs of the body on the death of the survivor. As the real and personal estate are disposed of by the same words, the construction must be the same in both, and no part of either vested in William Wyatt. The husband and wife had a joint estate for life in both, and upon the death of either, the survivor became entitled for life; nor does it seem to me that it was such an interest in the wife as the husband might have assigned or released, so as to destroy the right of survivorship. Shepherd's Touch., 344; Cro. Car., 222; 1 Salk., 326; Cro. Jac., 570. I am of opinion that William Wyatt, having died before his surviving parent, took nothing in either real or personal property.
Were the superadded words, equally to be divided between them, stricken out, and the case decided according to the laws of England, there would be no doubt but that the wife who survived her husband would take an estate in special tail; that the estate created by the devise should stand thus, an estate to husband and wife during the coverture with a contingent remainder in special tail to the survivor; for the heirs of the body being called to the succession in (251) the character of heirs, must take in the quality of heirs, which could not be effected without according to the ancestor an estate descendible to the heirs of her body, and this, regardless of the intent of the devisor, for the question is not what he intended to do, but what he has done; he has called to the succession the heirs of her body after giving to her a life estate; and they claiming in their character of heirs, the ancestor must have an estate of inheritance herself, for the heirs as heirs can take only that which was in the ancestor. But since the abolition of estates tail "heirs of the body" can no longer take in that character, and, therefore, cannot take in the quality of heirs. In their proper sense those words can no longer be considered as words of limitation or expansion; they must, therefore, be understood as words of purchase, when we are ascertaining in what character the heirs are called to the succession and in deciding on the question whether the ancestor took an estate of inheritance or a bare estate for his life only. It is admitted that if an estate be granted to A. and to the heirs of his body, that A. has a fee simple; not that it is converted into a fee simple by the act of 1784 — it was not otherwise for a moment. The Legislature declared by that act that all such limitations thereafter made should create a fee simple descendible to the heirs collateral as well as lineal. We cannot, therefore, by construction, turn a life estate into an estate tail, and then give it up to the operation of the act of 1784, and thereby entirely defeat the intention of the devisor; for in such case the collateral heirs would succeed on failure of lineal heirs. Heirs general include the whole inheritable blood. By our law the latter description has lost its character; our law knows of no such body of heirs taking exclusively. But the words have not lost their meaning as a designatio personarum; they point to the same persons that they did before the act of 1784. When the person designated comes to (252) claim, and not before, the question then arises, In what character does he claim in order to ascertain in what quality he should take? If, therefore, an estate for life be given to A., remainder to the heirs of his body, and a collateral heir, a brother, should come to claim, the question in what character he claims would never arise; the previous question would dispose of his claim, that he is not the person designated; he could, therefore, claim in neither character. As well might it be said that the two estates unite where the limitation is to the first son; first, for the word son is not a word of limitation, but of purchase, because it does not include the whole inheritable blood of either species of estates known to the laws of England. So here, heirs of the body are not words of limitation, but of purchase, when we are ascertaining this previous question, for the very same reasons; they do not include the whole inheritable blood on whom any estate of inheritance is descendible.
The rule, therefore, is, when by the words the same persons are called to the succession in the same manner as when called by the law, they claim in the character of heirs, and must take in the quality of heirs; and when not, they take as purchasers.
I am glad that we are relieved from deciding on the meaning of the words heirs of the body or heirs general when applied to personal property. The question in the abstract does not appear to be settled in England. The opinion expressed by Lord Alvanley in Ves., Jr., I think is the better one, that they mean heirs quoad the property. It is true that many cases may be found where it is said that they mean children, issue, descendants, next of kin, and the like. But this meaning is given to them in reference to the particular case then under consideration, as where the contest is between the eldest son and heir at law and the other children. There it was said they mean children to include the whole, for they are heirs quoad the property; also where they were construed children to prevent the operation of the maxim nemo est haeres viventis, and the like. There is one case decided by Sir Thomas Clarke, (253) master of the rolls, in which it was adjudged that they meant children, in exclusion of grandchildren; but I do not find that this case is followed; it is not so much as noticed by Lord Alvanley, and it appears to me to be a strange decision; but there was a reason given for it, but a very poor one. The estate was devised to the heirs of the body of A. and to the children of B. Sir Thomas Clarke took hold of the word children of B. to exclude the grandchildren of A. If necessity required it, I think he ought to have reserved it. But in this case we are relieved from the consideration of the question, for the devise certainly intended the property to be kept together, and to go over together; and there is nothing improper to use a word proper to designate a person in regard to real property, to point out a purchaser of personal property. It is true that the devisor could not make it descend as real property; but because we cannot effectuate his intent in toto is no reason that we shall not do it in part; and by these words we are carried to persons to take by certain designation, for the statute of 1784 has not destroyed the meaning of the words heirs of the body; they still designate those lineal descendants on whom an inheritance devolves so far as regards designating a purchaser. But, it was argued, why not take its meaning with respect to personal property as regards both species, as they are to be kept together, and carry both estates to the heir quoad the personal estate? The answer is, the words heirs of the body are more appropriate to real estate; it is there technical; in the other it is more uncertain, and we are left in some measure to conjecture. Besides, the real estate is the most worthy, and if both estates are to go together, its word of designation shall be preferred.
I, therefore, think that the mortgagor had nothing in the property when the mortgage was made, and that the other children, not claiming under him, will not be affected by his transfer. The bill must, therefore, be dismissed with costs. (254)
I think the interest intended by the testator for the heirs of the body of John and Parthenia Wyatt is contingent, and does not vest in them until the death of their mother, who survived their father, and that then they take as purchasers.
I think the words heirs of their bodies lawfully begotten are a description of the persons intended to take, because the words equally to be divided between them, to them and their heirs forever, give them a fee simple, and if they have a fee simple, they do not take it because they are the heirs general of their father and mother, but because the testator by using those latter words has given it to them. If, then, they have a fee simple by those latter words, they take nothing by the words heirs of their bodies, etc., as used in a technical sense; the only office of those words must be to ascertain, at Mrs. Wyatt's death, the persons who shall be entitled to take; before the happening of that event it cannot be done, for nemo est haeres viventis.
We have been urged to consider the words heirs of the body as issue or children, in order to let the property vest. But I cannot discover in the will any clause that justifies a departure from the words used by the testator; it is not likely that he intended that the children of John and Parthenia should have any control over the property before they got it into their possession. I, therefore, think that the real and personal property in question did not vest in William Wyatt during his life, and of course he conveyed nothing by the deed which he executed to the complainants. But there is another view of this case, taken by my brother Henderson, to which I altogether subscribe, which leads to the same result, and that is, that the words heirs of the body give an estate in fee by purchase, although there is an estate for life to the parent (255) preceding it; because heirs of the body are not heirs general, and our law, since estates tail are done away, recognizes none as heirs except such as can inherit collaterally as well as lineally; and that, although where there is an estate for life to the parent, remainder to his heirs, both estates unite in the parent under the operation of Shelley's case, yet there can be no such union where the remainder is to heirs of the body; our law knows of no such heirs. Of course, they are words of description, and those that take under them must take as purchasers. In England the case is otherwise, because heirs of the body are recognized as heirs; they can inherit as such.
I also think, for the reasons given by Judge Henderson, that the personal estate in this case is to be governed by the same rules of law as the real estate.
Cited: Leathers v. Gray, 96 N.C. 551; s. c., 101 N.C. 167.
Questioned and held doubtful authority: Chambers v. Payne, 59 N.C. 279; Nichols v. Gladden, 117 N.C. 504.