Baugham v. . Trust Co.
107 S.E. 431
N.C.
1921
Check Treatment
AlleN, J.

Tbe land in controversy and other lands are devised in tbe will-of William B. Baugbam to all bis children, with provision that if one or more die without issue tbe interests of such children so dying shall vest in tbe survivors, and if all tbe children die without issue, then to tbe heirs of the testator.

Tbe first contingency — “if one or more die without legal issue” — is disposed of by tbe partition proceedings, to which all tbe children were parties, and in which tbe right of survivorship in tbe event one or more dies without issue is mutually surrendered and released.

It was beld in Beacom v. Amos, 161 N. C., 357, that a similar condition could be eliminated by deed, and, while usually a partition proceeding only operates as a severance of tbe unity of possession, tbe parties may put tbe title in issue, and when they do so tbe adjudication of title is binding and final between tbe parties. Weston v. Lumber Co., 162 N. C., 180.

It follows, therefore, that tbe plaintiff, Setb B. Baugbam, is tbe owner in fee simple absolute of tbe share allotted to him, unless bis estate is made defeasible by tbe limitation to tbe heirs of tbe testator upon tbe death of all tbe children leaving no issue, and tbe decision of tbis question depends on tbe time when tbe heirs of tbe testator are to be ascertained.

In 40 Cyc., 1481, authorities from twelve states and from England and Canada are cited in support óf tbe text that, “As a general rule tbe death of the testator is tbe time at which tbe members of a class are to be ascertained in case of a gift to tbe testator’s heirs, next of kin, or other relatives, unless tbe context of tbe will indicates a clear intention that tbe property shall go to tbe heirs, next of kin, or other relatives at a different time, such as at tbe time of distribution, or at tbe death of tbe first taker, or at tbe date of tbe execution of tbe will. . . .

Where tbe gift is to tbe heirs or next of kin of another than tbe testator it ordinarily refers to tbe death of such other, unless tbe context of tbe will manifests that tbe class shall be determined at a different time, such as at tbe time of distribution.” Wright v. Gooden, 11 Del., 414; In re Kenyan, 17 R. I., 149, and Stokes v. Van Wyck, 83 Va., 724, are learned and well considered cases supporting tbe text, although overlooked in Burden v. Lipsitz, 166 N. C., 523.

*409 This distinction is clearly recognized in our own decisions. Newkirk v. Hawes, 58 N. C., 268; Wool v. Fleetwood, 136 N. C., 471, being cases in which it was held that in a limitation to the heirs of the testator the heirs must be determined as of his death, and the principle was approved in Jenkins v. Lambeth, 172 N. C., 468, in which it is said: “It 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. Newkirk v. Hawes, 58 N. C., 265; Rives v. Frizzle, 43 N. C., 237; Jones v. Oliver, 38 N. C., 269; Welch v. Blanchard, 208 Mass., 523; Wallace v. Dichl, 202 N. Y., 156, reported also in 33 L. R. A., N. S., pp. 1 and 9, where the general question is treated in a full and instructive note by the editor.”

It was also held in the Newhirk case that “a contingent remainder, or any such contingent interest in -land, is transmissible by descent.”

It is true that the limitation to the heirs of the testator is referred to in some of the cases as a remainder to the heirs, and in others as a reversion left in the testator (see authorities cited in Thompson v. Batts, 168 N. C., 335), but since the reversion would pass to the heirs by descent, this does not have any. effect upon this title as the same persons take the same estate whether as remaindermen or as heirs of the reversion, and applying the principle that the heirs of the testator must be ascertained as of his death, unless a contrary intent appears in the will, we find that the first takers of the estate are all the children of the testator, who are also all of his heirs in whose favor the ultimate limitation is made if they take as remaindermen under the will, or who would take as heirs if a reversion was left in the testator, and thus in any event the whole estate, defeasible and indefeasible, whs vested in the parties to the partition proceeding as children and heirs, and if so, each child takes the share allotted to him in fee simple absolute.

We are therefore of opinion the title of Seth B. Baugham is indefeasible.

Affirmed.