Brown v. . MitchellBrown v. . Mitchell
- Reporters:
- , ,
- Before:
- Stacy
With respect to plaintiff’s appeal, it is sufficient tо say that as tbe judgment of confirmation was entered out of the county and under a misapprehension of the agreement of the parties, it was properly vacated on motion. Bisanar v. Suttlemyre, 193 N. C., 711, 138 S. E., 1.
Unless authorized by statute, or by consent of the parties, a judge of the Superior Court has no authority to hear a cause, or to make an order substantially affecting thе rights of the parties, outside of the county in which the action is pending. Gaster v. Thomas, 188 N. C., 346, 124 S. E., 609; Cahoon v. Brinkley, 176 N. C., 6, 96 S. E., 650.
It is likewise sufficient to say in regard to defendants’ appeal, the holding that Laura E. McDaniels is seized of less than an indefeasible fee in said lands accords with the decisions on the subject. Nobles v. Nobles, 177 N. C., 243, 98 S. E., 715. Thе limitations in the will are not so framed as to attraсt the rule in Shelley’s case, which obtains in this jurisdiction not only as a rule of law but also as a rule of property. Whitehurst v. Bowers, 205 N. C., 541, 172 S. E., 180; Martin v. Knowles, 195 N. C., 427, 142 S. E., 313; Welch v. Gibson, 193 N. C., 684, 138 S. E., 25. “Nearest blood kindred” excludes the idea of representаtion or affinity, Fields v. Rollins, 186 N. C., 221, 119 S. E., 207; and, “as regulated by the laws of descеnt,” has reference to the nearest blood kindred of the testator, who would potentially be a part at least of the next of kin of the first taker. Wallace v. Wallace, 181 N. C., 158, 106 S. E., 501. These expressions, taken in connection with the originаl limitation of the remainder “to her legitimate children,” would seem to indicate that the use of the word “heirs” in the ulterior clause was intended to be taken in the sense of issue or children. The case, therefore, is controlled by the decisions in Puckett v. Morgan, 158 N. C., 344, 74 S. E., 15; Jones v. Whichard, 163 N. C., 241, 79 S. E., 503; Pugh v. Allen, 179 N. C., 307, 102 S. E., 394; Blackledge v. Simmons, 180 N. C., 535, 105 S. E., 202; Hampton v. Griggs, 184 N. C., 13, 113 S. E., 501; Reid v. Neal, 182 N. C., 192, 108 S. E., 769; Doggett v. Vaughan, 199 N. C., 424, 154 S. E., 660.
The distinction betwеen this line of cases, in which the rule has been held not to be applicable to the limitations aрpearing therein, and the long line of decisions in whiсh it has been held to be applicable and firmly established as the law of this jurisdiction, was first pointed out in Pugh v. Allen, supra, and repeated in Hampton v. Griggs, supra, Welch v. Gibson, supra, Doggett v. Vaughan, supra, substantially as follows: When there is an ulterior limitation which provides that upion the happening of а given contingency, the estate is to be taken оut of *135 tbe first line of descent and then put back into tbе same line, in a restricted manner, by giving it to some, bnt not tо all, of those wbo presumptively would bave shared in tbe estate as being potentially among tbe heirs general of tbe first taker, this circumstance may be used as one of tbe guides in ascertaining tbe paramount intention of tbe testator, and, with other indiciа, it has been held sufficient to show that the words “heirs” or “hеirs of tbe body” were not used in their technical sensе. See, also, and compare Clark v. Clark, 194 N. C., 288, 139 S. E., 437, Yelverton v. Yelverton, 192 N. C., 614, 135 S. E., 632.
Tbe remaining рortions of tbe judgment are not challenged by exception or appeal, hence they are deemed to be correct.
On plaintiff’s appeal
Affirmed.
On defendants’ appeal
Affirmed.