Pugh v. . Allen
102 S.E. 394
N.C.
1920
Check Treatment
Hoke, J.

The validity of the title offered depends upon the proper interpretation of the deed from Francis Pugh to his son, James H., the plaintiff, in terms as follows, omitting irrelevant matter :

“That the said Francis Pugh, for and in consideration of the natural love and affection which he has unto the sаid James H. Pugh, and for the further consideration of the sum of one dollar to me in hand paid, the rеceipt whereof is hereby acknowledge, and for the further consideration that the said James H. Pugh does, at or before the signing and delivery of these presents, release unto my sоn Thomas K. Pugh all of his interest in the place whereon I now reside, given by Wm. Kirby, deceased, in his last will and testament to my wife, Mary Ann Pugh, and to the heirs of her body, and for the further consideration that in ease it shall become necessary I reserve the ‍​​​‌‌​‌​​​‌‌‌‌‌​‌​​‌‌‌‌​​‌‌​‌‌‌‌​‌​​​​‌‌​​‌​​‌‌‌‍right to draw from said lands such portion of the crops as I, the said Francis Pugh, shall deem sufficient for my sustenance. And for the further considerаtion that in case the said James H. Pugh should die without an heir the following gift shall revert to the sole usе and benefit of my son, Thomas K. Pugh, his heirs and assigns. I, the said Francis Pugh, have given, granted, aliened, releаsed, and confirmed, and by these presents do give, grant, alien, release, and confirm unto thе said James H. Pugh, his heirs and assigns, all of that tract or parcel of land situated on the west side оf the Six Runs, known as the Needham Stevens place, and bounded as follows :
“Together with all the privileges and all things appurtenant thereto, and all the estate, rights, title, interest, exceрt the above named reservations, of him, the said Francis Pugh, in and thereto.
*309 “To have and to bold tbe said messuage and all tbe appurtenances thereof (on tbe conditions prescribed) ‍​​​‌‌​‌​​​‌‌‌‌‌​‌​​‌‌‌‌​​‌‌​‌‌‌‌​‌​​​​‌‌​​‌​​‌‌‌‍to bim tbe said James H. Pugb, bis beirs and assigns, to bis and tbeir proper use and beboof forevеr.”

It is tbe recognized position in tbis State tbat, except wben modified by some arbitrary princiрle of law like tbe rule in Shelley’s case, tbis perhaps being, the only exception now prevailing, a deеd must be construed so ‍​​​‌‌​‌​​​‌‌‌‌‌​‌​​‌‌‌‌​​‌‌​‌‌‌‌​‌​​​​‌‌​​‌​​‌‌‌‍as to effect tbe intention of the parties as expressed in tbe еntire instrument. Brown v. Brown, 168 N. C., 4; Gilbert v. Shingle Co., 167 N. C., 286; Jones v. Whichard, 163 N. C., 241; Triplett v. Williams, 149 N. C., 394.

Applying tbe principle, it has been held in several of our decisions construing deeds of similar import tbat, in ease of a limitation over on tbe death of a grantee or first taker without heir or beirs, and tbe second or ultimate taker is presumptively or potentially оne of tbe beirs general of tbe first, tbe term “dying without heir or beirs” on tbe part of tbe grantee will bе construed to mean, not bis beirs general, but bis issue in tbe sense of children and grandchildren, etc., living at bis death. Sain v. Baker, 128 N. C., 256; Francks v. Whitaker, 116 N. C., 518; Rollins v. Keel, 115 N. C., 68. In Sain v. Baker, supra, tbe testator devised tbe property to bis son, and, on tbe son’s death without beirs, to bis ‍​​​‌‌​‌​​​‌‌‌‌‌​‌​​‌‌‌‌​​‌‌​‌‌‌‌​‌​​​​‌‌​​‌​​‌‌‌‍dаughters, tbe word beirs in tbis limitation was held to mean children, and tbe present Ghief Justice, delivering tbe opinion, sаid: “From tbe context, it is clear tbat tbe words without lawful heir or beirs are used in tbe sense of dying without issuе or children, otherwise tbe limitation over to tbe daughters would have been in vain.” And in Francks v. Whitaker, a similar ruling was mаde as follows: “Where a testatrix devised land to her son for life and after bis death to bis lawful heir or beirs, if any, and, if none, to tbe children of another son, tbe words fiieir or beirs’ will be construed tо mean bis issue and not bis beirs generally, and upon bis death without issue tbe land goes to tbe children of tbe other son, all of whom were living at tbe date of tbe will.” Tbis, then, being the correct interpretation of tbe ‍​​​‌‌​‌​​​‌‌‌‌‌​‌​​‌‌‌‌​​‌‌​‌‌‌‌​‌​​​​‌‌​​‌​​‌‌‌‍present deed, on tbe death of tbe plaintiff and grantee, James H. Bugh, without issue, which now appears to be altogether probable, tbe estate would go over to tbe beirs of Thomas K. Pugb, deceased, of tbe blood of tbe first purchaser, and these wоuld take and bold not under tbe proposed vendor, but as beirs of Thomas K. under tbe deed from Frаncis, tbe grantor, and, on tbe death of James H., without issue living at bis death, bis deed would be of none effect. Sessoms v. Sessoms, 144 N. C., 121; Smith v. Lumber Co., 155 N. C., 389.

We are not inadvertent to tbe position argued for plaintiff tbat tbe limitation over is void as being repugnant to tbe portion of tbe deed carrying to plaintiff an estate in fеe, but putting aside tbis fact tbat tbe *310 limitation is stated as a part of the consideration of the deed and expressed in the form of a condition, the two clauses are not repugnant in the sense that one is destructive of the other, but, under the rule of interpretation heretоfore stated, the limitation should be properly held as a qualification of the granting clаuse, and showing that the intent of the grantor is not to convey a fee simple absolute, but a fеe defeasible, as his Honor ruled. Jones v. Whichard, supra.

We find no error in the record, and the judgment of the Superior Court is affirmed.

No error.