11 S.E. 1090 | N.C. | 1890
We are of opinion that the court below misinterpreted the meaning and effect of the clause in question of the deed of trust which, in terms, embraced all the plaintiff's "right, title, interest, claim and demand in and to the estate of his deceased father, H. H. Burwell, including his interest in the tract of land in Mecklenburg County, Virginia, known as the Rawlins farm, the said interest in said estate and land being one undivided one-fifth interest therein." This implies no more than his interest as one of the heirs at law and next of kin of his deceased father. It has reference to the intestate's estate, personal and real, and the interest is specially described as "being one undivided one-fifth interest therein." The intestate left surviving him five heirs, the plaintiff being one of them, and entitled to one-fifth of the estate, and, plainly, he intended to convey that interest. There is no word, or words, in the clause recited that at all imply a purpose to embrace and convey debts due from the estate to the plaintiff. Debts so due to him would not be part of his interest as heir at law or next of kin — as to them, he would be a creditor, and entitled, as such, to be paid.
Moreover, the insurance policy, and the money collected upon (87) the same, did not constitute part of the intestate's estate, as seems to have been supposed, nor was the plaintiff entitled to part of it as such heir or next of kin. The policy and money belonged to the widow and children of the intestate in their own right, and not as heirs and next of kin.
The Constitution (Art. X, sec. 7) provides that "The husband may insure his own life for the sole use and benefit of his wife and children, and in case of the death of the husband, the amount thus insured shall be paid over to the wife and children, or to the guardian, if under age, for her or their own use, free from all the claims of the representatives of her husband or any of his creditors." This provision clearly contemplates and intends that the husband may so insure his life, and that the policy of insurance shall at once, upon his death, become the absolute property of his wife and children, and not constitute any part of his personal estate, nor will his heirs or personal representatives or next of kin, as such, have any interest in such policy. Burton v. Farinholt,
So that the clause of the deed under consideration no more embraced the plaintiff's interest in the policy of insurance in question than it did any property and rights of the plaintiff he did not acquire as heir at law or next of kin of his deceased father, or from his father at all. The terms of the deed go strongly to show that there was no purpose on the part of the plaintiff to embrace by it his interest in the policy or fund arising from it; it expressly describes his interest conveyed in the estate as one undivided fifth therein; his interest in the policy was one sixth thereof. If he had intended to convey the latter interest, and to specify the extent of it particularly, he (88) would have done so correctly, and by appropriate terms.
Nor can the mortgagee defendant reasonably contend that the plaintiff intended to convey his right, to be subrogated to the extent of his share of the money arising from the policy of insurance, to the rights of the creditors of the intestate, whose judgments were paid with the money collected upon the policy. That right, treating it as such, was not part of the estate of the intestate — it was an equitable claim against it. As we have seen, the language employed was not appropriate to convey or transfer debts and claims against the estate. Besides, the language of the deed employed to describe specifically and with particularity the interest conveyed, did not describe the right of subrogation as to its extent, or at all correctly; it described the interest conveyed as one-fifth, whereas the right of subrogation was one-sixth in extent.
There is error. The judgment must be so modified as to allow the motion of the plaintiff denied.
Modified.
Cited: Cutchin v. Johnston,
