127 S.E. 517 | N.C. | 1925
The plaintiff, Hartman, is the duly appointed trustee in bankruptcy of T. H. Flynn, who is the same person as Shack Flynn.
This action is to recover a tract of land from Shack Flynn, Bankrupt, and Mattie Flynn, his wife, for the use of the bankrupt estate.
It further appears that, in order to adjudicate the rights of the children of Shack Flynn in this land, those now in esse, as well as those who may be hereafter born, were made parties.
The plaintiff's right to recover is dependent on item 4 of the will of Thomas W. Flynn. This item is as follows:
"I give to my son, Shack, so long as he lives, and then to his bodily heirs, the Randleman plantation, lying mostly on the east side of the road leading from the river out by H. M. Scott's to the Old Richmond Road, two small strips lying on the west side of the road, one near H. M. Scott's, and the other near Sid Butner's, known as the Old Poplar Springs; this land to be valued at $1,600.00. But if he should die before his wife, Mattie, she shall hold the same plantation as long as she remains single."
The court rendered the following judgment:
"This cause coming on to be heard before his Honor, P. A. McElroy, judge presiding at the November Term, 1924, of the Superior Court of Forsyth County, and being heard upon the pleadings and the agreed statement of facts, the court is of the opinion, and so holds, that under the terms of the will of Thomas W. Flynn, which is attached to the complaint, and under item 4 thereof, the defendant, T. H. (Shack) *453 Flynn, was devised a title in fee simple to the lands described in item 4 of the said will, subject only to an estate to Mattie Flynn, wife of T. H. (Shack) Flynn, during her widowhood, in the event the said T. H. (Shack) Flynn dies during the lifetime of the said Mattie Flynn.
"It is therefore decreed, ordered and adjudged that the plaintiff, W. V. Hartman, trustee in bankruptcy of T. H. (Shack) Flynn, is the owner of and is entitled to the possession of the lands described in the fourth item of said will, he holding a fee-simple title thereto, subject only to the contingent interest of the said Mattie Flynn, as aforesaid, and subject to a homestead to T. H. (Shack) Flynn, as provided by law.
"And it is further ordered that the defendant, T. H. (Shack) Flynn, and wife, Mattie Flynn, surrender possession of said lands described in the fourth item of said will immediately to the said W. V. Hartman, trustee in bankruptcy of T. H. (Shack) Flynn, bankrupt, and that the said W. V. Hartman, trustee, be put in possession thereof, subject to a homestead therein, as provided by law.
"It is further ordered that the costs of this action be taxed against the defendant, T. H. (Shack) Flynn."
The defendant, Shack Flynn, contends that he was only a life tenant of the lands in controversy, while plaintiff contends that he was a tenant in fee, subject to the contingent life estate of Mattie Flynn, his wife, and that the plaintiff therefore is entitled to the said lands for the use of the bankrupt estate, subject to this contingent life estate of Mattie Flynn and the homestead rights of Shack Flynn. It is conceded that, if the rule in Shelley's case applies to this devise to Shack Flynn, the judgment of the trial court must be affirmed.
The rule in Shelley's case is imbedded in the jurisprudence of North Carolina as a well-settled rule of property. Whatever may have been its status prior to that time, it was set at rest by Starnes v. Hill,
We find a most interesting and learned discussion of this doctrine in Mordecai's Law Lectures, Vol. 1, 649 et seq. An elaborate discussion also appears in 24 R. C. L., 887. A complete American judicial history of this rule appears in the very elaborate treatise in 29 L.R.A. (N.S.), 963-1170, with a list of the North Carolina cases on pages 1165-1166.
In Hampton v. Griggs,
In this case the following prerequisites to the application of the rule in Shelley's case are collated and announced:
"(1) There must be, in the first instance, an estate of freehold in the ancestor or by the first taker; and (2) the ancestor must acquire this prior estate by, through, or in consequence of the same instrument which contains the limitation to his heirs; (3) the words `heirs' or `heirs of the body' must be used in the technical sense as importing a class of persons to take indefinitely in succession, from generation to generation, in the course marked out by the cannons of descent; (4) the interest acquired by the ancestor and that limited to his heirs must be of the same character or quality — that is to say, both must be legal, or both must be equitable, else the two would not coalesce; and (5) the limitation to the heirs must be of an inheritance, in fee or in tail, and this must be made by way of remainder."
In the first place, the defendant asserts the nonapplicability of the rule in Shelley's case, because of the contingent life estate of Mattie Flynn, wife of Shack Flynn.
In Daniel v. Harrison,
In Smith v. Smith,
The second intervening estate, during "her lifetime or widowhood," did not prevent the application of the rule.
In Jones v. Whichard,
In Nichols v. Gladden,
We see that these statements are necessarily the same. The words "either with and without the interposition of another estate" in the one perform the same office as the words "either mediately or immediately" in the other. Ex vi terminorum they include the contingent estate, duranteviduitate, as provided in the instant case. Smith v. Smith, supra.
"The interposition of a life estate in another does not interfere with the operation of the rule, so far as the heirs are concerned, when the estate comes to them they take by descent and not by purchase, and the ancestor, or first taker, has full power of control over the property, and may sell or encumber as a full owner may, subject only to estate in remainder to the wife during her life or widowhood, and the rights incident to it." Smith v. Smith, supra; Cotton v. Moseley,
We therefore conclude that the contingent estate of Mattie Flynn does not prevent the application of the rule in Shelley's case.
It is further contended that the words "bodily heirs" are not the same as "heirs of the body." This has been adjudicated with definiteness and certainty against defendant's contention. Blake v. Shields,
In the instant case it is clear that the use of "bodily heirs" is not adescriptio personarum, but the use is in the technical sense. Revis v.Murphy,
In Bank v. Dortch,
In Walker v. Butner,
The Court also says: "It is doubtless, for this reason, that the rule has never been repealed in North Carolina."
Accordingly, we are of opinion that the devise in the instant case comes clearly within the rule in Shelley's case, and had the effect to vest into Shack Flynn an estate in fee simple in the lands devised, subject to an estate in favor of Mattie Flynn, his wife, contingent upon her survival of him and during her widowhood. Inasmuch as her rights, as well as the homestead rights of Shack Flynn, are fully protected, let the judgment of the trial court be
Affirmed.