21 N.C. 598 | N.C. | 1837
The defendant answered and insisted that by the terms of the will the absolute interest in the slaves vested in her; and this was the only question in the cause.
Devereux, for the plaintiffs, argued that the rule in Shelley's case did not apply to slaves and he cited the case of Gettings v. McDermott, 7 Cond. Ch. Rep., 263, as an authority to prove that no decided (599) case had ever included mere chattels within that rule. He also contended that the words "lend" and "widowhood," would prevent the subsequent bequest to the "lawful heirs" of the legatee from enlarging her interest into an absolute one.
The cause was submitted without argument by
The land mentioned in the recited clause of the will, we think, is clearly and absolutely given in fee to Mrs. Ham. And if the subsequent words in the clause which relate to the slaves, had related to the land, then there would be no doubt but Mrs. Ham would be entitled to the whole fee, by force of the rule in Shelley's case, 1 Coke Rep., 92. That rule is that when in any instrument an estate of freehold is given to the ancestor and afterwards by the same instrument the inheritance is limited either mediately or immediately to his heirs or heirs of his body, *465
as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and not of purchase, and the ancestor takes the whole estate. The possibility that the estate of freehold may determine in the lifetime of the ancestor does not prevent the subsequent limitation to his "heirs" from attaching in himself as a vested interest. Fearn Cont. Rem., 33-37. Merrel v. Ramsey, T. Raym., 126. Curtis v. Price, 12 Ves. Jun. Rep., 89. When to the word "heirs," are superadded the words of limitation "for them and their heirs," the limitation will still be construed within the rule in Shelley's case. Goodright v. Pullyn, 2 Lord Ray.,
PER CURIAM. Bill dismissed.
Cited: Floyd v. Thompson,