60 S.E. 909 | N.C. | 1908
From the facts agreed it appeared that Elisha Harrell died domiciled and resident in Edgecombe County, seized and possessed of the land in controversy, and leaving him surviving his widow, Anne Eliza Harrell, and several sons and daughters; that item 2 of the will of Elisha Harrell, duly executed and admitted to probate in said county, contained the following devise: "I lend unto my wife, Anne Eliza Harrell, 290 *84 acres of land during her natural life or widowhood; at the death or marriage of my said wife, I give and bequeath unto my four youngest children, Armitha Harrell, Opperlina Harrell, Rebecca Harrell, and Louisa Harrell, the above-named 290 acres of land, known as follows: . . . And if either or all of the above girls die without leaving a lawful heir, my will and desire is that the said lands be equally divided between my two sons, John Harrell and Jesse Harrell."
2. That during the life of the widow, Anne Eliza Harrell, the 290 acres of land were actually and equally parceled out among the four daughters mentioned in item 2 of the will, and each of said daughters was put in possession of her respective share.
3. That Anne Eliza Harrell, widow of Elisha, died on 5 March, 1903, not having remarried.
4. That Louisa Harrell, one of the four daughters mentioned in item 2 of the will, intermarried with one Richard Webb, in January, 1898, and died 12 September, 1902, intestate and without ever having had a child; that John and Jesse Harrell mentioned in item 2 of the will, are dead, and plaintiffs are their descendants and only heirs at law; that Opperlina Harrell died domiciled in said State and county, in October, 1906, leaving two illegitimate children, who are defendants; that said Opperlina Harrell was never married and had no children at her father's death.
The action is to recover that portion of the 290 acres of land (113) devised by item 2 of Elisha Harrell's will which was set apart to Opperlina Harrell, the plaintiffs being, as stated, the descendants and only heirs at law of John and Jesse Harrell, and defendants the illegitimate children of Opperlina.
On the facts stated, the court being of the opinion that plaintiffs were the owners of the land in controversy, judgment was entered in their favor, and defendants excepted and appealed.
After stating the case: The clause of the will here in question conveyed to the four daughters named an estate of remainder in fee, after the life estate of their mother, and determinable as to each holder's share on her dying without leaving a lawful heir. Sessoms v. Sessoms,
Our statute on this subject (Revisal, ch. 30; Rule 9) provides: "That when there shall be no legitimate issue, every illegitimate child of the mother, and the descendants of such child deceased, shall be considered an heir, and as such shall inherit her estate." By the express words and plain import of the statute, therefore, these two children of the devisee fill the description required by the terms of the devise, "if she should die without leaving a lawful heir," and meet the condition on which their mother's estate should become absolute; and there is direct authority with us upholding this position. Fairly v. Priest,
We do not understand that plaintiffs urgently insist that the Court should attach any great importance to the use of the word "lawful," prefixed to "heir" in the devise. In the absence of a contrary intent clearly indicated in the will, the term does not at all mean "legitimate," but simply the person designated by law to take by descent. It is more frequently used in wills without special meaning being intended, and as a rule should not be allowed any controlling significance. Thus, Montgomery,J., in Francks v. Whitaker, infra: "The word `lawful' may be stricken out as meaningless, for there is no such anomaly in law as an unlawful heir." And Walker, J., in Wool v. Fleetwood,
We do not think this is a permissible construction from the cases cited, and for the reason, among others, that the term "issue," in Rollins v. Keel
and in Francks v. Whitaker, was not used in the sense of children simply, but in its primary and more usual meaning: "An indefinite succession of lineal descendants who are to take by inheritance, and hence `heirs of the body.'" Cyc., 23, p. 359; 17 A. and E. Ene., 543; Underhill on Wills, sec. 669; Abbot v. Essex Co.,
It is earnestly contended by the learned counsel for plaintiffs that the decision of Fairly v. Priest, supra, is only authority where the illegitimate child was in existence at the making of the will, and where, from other portions of the will, it was clear that the devisor contemplated that the illegitimate child should take. But; while these facts existed in the case cited, and are referred to in the opinion, they are only given as supporting the conclusion, which was made to rest mainly on the fact that, by the operation of the statute making the illegitimate child an heir of the mother, the claimant filled the description of the devise and came within its terms.
The decision is, we think, a direct authority sustaining the position of defendants, and should control the construction of the devise upon which their title rests. There is error, and on the facts agreed judgment should be entered for defendants.
Reversed.
Cited: S. c.,
(118)
