Opinion
Filed 14 January, 1966.
1. Venue 3 — An action for the construction of a will should be instituted in the county where the will was admitted to probate.
2. Venue 1 — Failure to object to improper venue constitutes a waiver thereof.
3. Wills 32 — The rule in Shelley's Case applies where there is a remainder over after a life estate to the heirs general of the life tenant, and if the words used, regardless of phraseology, disclose an intent to carry the remainder to such heirs the rule applies as a rule of property, notwithstanding testator may have intended to convey only a life estate to the first taker.
4. Same — The word "purchaser" when used with reference to the rule in Shelley's Case designates one who takes an estate in his own right under the instrument, while words of limitation define the extent or quality of the estate.
5. Same — The word "children" is usually a word of purchase and does not attract the rule in Shelley's Case unless the language of the instrument discloses that the word was used to designate heirs generally.
6. Same — A devise to a life tenant and at her death "to the children or other lineal descendants of the said" life tenant * * * "to them and their heirs, executors and administrators absolutely," held not to attract the rule in Shelley's Case, since it is apparent that testator was not describing heirs general to take in indefinite succession but wished the remainder to go to the children of the life tenant who survived the life tenant and to the issue of children who predeceased her.
APPEAL by plaintiffs from Johnston, J., May 1965 Civil Session of ROCKINGHAM.
McMichael Griffin for plaintiff appellants.
Charles W. Campbell, Guardian ad litem for Jean Johnson Wright et al, defendant appellees.
Action for a declaratory judgment to construe the will of W. W. Davis. The pleadings establish these facts:
The will, dated November 20, 1913, was probated in Gaston County on January 10, 1924. By the first provision of his will, testator bequeathed and devised all his property to his wife, Julia Davis, for her lifetime. The second and third provisions are as follows:
"Second — After the death of my said wife, I give, bequeath and devise all of my property, real, personal and mixed, to Elsie May Johnson, to have and to hold the same to her use for and during her life time.
"Third — After the death of my said wife and after the death of said Elsie May Johnson, I give, bequeath and devise all of my property, real, personal and mixed, to the children or other lineal descendants of said Elsie May Johnson, to have and to hold the same to them and their heirs, executors and administrators absolutely."
Julia Davis is dead. Elsie May Johnson married David M. Wright. To them were born three children, Julia Davis Wright Chaney, Davis Wilson Wright, Jr., and Hugh Cobb Wright. All three children are over 21 years of age. Elsie May Johnson (Wright) is now 65 years of age. Her husband is dead and she has not remarried.
The assets of testator's estate, now "in the form of cash and other lawful investments," are held by defendant William A. Vaden as trustee for the testamentary beneficiaries. Plaintiffs are Elsie May Johnson (Wright) and her three children. Defendants are the trustee and grandchildren of Elsie May Johnson (Wright) and all other lineal descendants of Elsie May Johnson (Wright) yet unborn. The minor grandchildren and unborns are represented by their duly appointed guardian ad litem.
Plaintiff contend that the devise to Elsie May Johnson (Wright) constituted an estate in tail which, under the rule in Shelley's Case and G.S. 41-1, was converted into a fee simple, and that she is presently entitled to testator's entire estate. Defendants contend that Elsie May Johnson (Wright) took only a life estate. From a judgment decreeing that she took a life estate in the property, "and that upon her death, her children, or other lineal descendants, shall take the remainder in said property in fee," plaintiffs appeal.
This action, being for the construction of a will, should have been brought in Gaston County where the will was admitted to probate. Since, however, no objection on this ground was taken in the court below, the improper venue was waived. Devereux v. Devereux, 81 N.C. 12; McIntosh, N.C. Practice and Procedure 804 (1956).
The question presented by this appeal is whether, in the devise of the remainder after her death, the words "to the children or other lineal descendants of said Elsie May Johnson" are words of purchase, or words of limitation which bring the devise within the rule in Shelley's Case. (Emphasis added.)
"The rule in Shelley's Case was first stated, 1 Coke 104, in 1581, and is as follows: `When an ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase."' Crisp v. Biggs, 176 N.C. 1-2, 96 S.E. 662.
See also Martin v. Knowles, 195 N.C. 427, 142 S.E. 313; Nichols v Gladden, 117 N.C. 497, 500, 23 S.E. 459, 460. "`The rule . . . applies whenever judicial exposition determines that heirs are described, though informally, under a term correctly descriptive of other objects, but stands excluded whenever it determines that other objects are described, though informally, under the term heirs."' Martin v. Knowles, supra at 430, 142 S.E. at 314.
Without doubt, testator intended that Elsie May Johnson (Wright) should take only a life estate in his property. If, however, the rule in Shelley's Case is applicable, she is entitled to the entire corpus of testator's estate, for it operates "`as a rule of property without regard to the intent of the grantor or devisor."' Hammer v. Brantley, 244 N.C. 71, 72, 92 S.E.2d 424, 425; accord, Chappell v. Chappell, 260 N.C. 737, 133 S.E.2d 666. Furthermore, with us the Rule applies to personalty as well as to realty. Riegel v. Lyerly, 265 N.C. 204, 143 S.E.2d 65.
In considering the applicability of the rule in Shelley's Case, it is important to draw and constantly keep in mind the difference between words of purchase and words of limitation. When used with reference to the Rule, words of purchase give the remainder to designated persons who thus take in their own right under the will or conveyance, and not by descent as heirs of the first taker. A purchaser, therefore, is one who acquires property in any manner other than by descent. See 1 Mordecai, Law Lectures 648 (2d Ed. 1916); Black, Law Dictionary 1399 (4th Ed. 1951); Ballentine, Law Dictionary 1369-70 (2d Ed. 1948); 96 C.J.S., Wills 870 (1957). Words of limitation denote the creation of an estate and define its extent or quality. Starnes v. Hill, 112 N.C. 1, 19-20, 16 S.E. 1011, 1016; Campbell v. Everhart, 139 N.C. 503 [ 139 N.C. 502], 511, 52 S.E. 201, 204; Ballentine, op. cit. supra 760; Black, op. cit. supra 1076. They are words
"which by referring to some other words in the instrument describe the extent or size of an estate that has already attached to some person. And so when the Rule says that the words `heirs' or the `heirs of the body' of A are words of limitation and not words of purchase, it simply means that `heirs' or the `heirs of the body' refer to and are read in connection with the estate given to A, extending or modifying that estate, and are not taken as describing a group to whom an estate will first attach." Block, The Rule in Shelley's Case in North Carolina, 20 N.C.L. Rev. 49, 50 (1941).
Plaintiffs contend that the devise "to the children or other lineal descendants of said Elsie May Johnson" is the equivalent of a devise to the heirs of her body and that the words are, therefore, words of limitation which create in her a fee tail, converted by G.S. 41-1 into a fee simple.
It is settled in North Carolina, and generally, that the word children is ordinarily a word of purchase. Moore v. Baker, 224 N.C. 133, 29 S.E.2d 452; 47 Am. Jur., Shelley's Case 18 (1943). Children, standing alone, does not refer to an indefinite line of succession from generation to generation; they are a class within heirs generally. "When the devise is to one for life and after his death to his children or issue, the rule has no application, unless it manifestly appears that such words are used in the sense of heirs generally." Faison v. Odom, 144 N.C. 107, 109, 56 S.E. 793, 794. Accord, In re Will of Wilson, 260 N.C. 482, 133 S.E.2d 189; Moore v. Baker, supra; Bobbitt v. Pierson, 193 N.C. 437, 137 S.E. 160; Hutton v. Horton, 178 N.C. 548, 101 S.E. 279; Smith v. Moore, 178 N.C. 370, 100 S.E. 702; Wilkinson v. Boyd, 136 N.C. 46, 48 S.E. 516; Hauser v. Craft, 134 N.C. 319, 46 S.E. 756.
"`Thus, even the word children, aided by the context, or the word issue, uncontrolled by the context, may have all the force of the word heirs, and then the rule applies; while the word heirs, restrained by the context, may have only the force of the word children, and then the rule is utterly irrelevant. These are preliminary questions, purely of construction, to be considered without any reference to the rule, and to be solved by, exclusively, the ordinary process of interpretation. This point, kept steadily in view, would have prevented infinite confusion."' Martin v. Knowles, supra at 430, 142 S.E. at 314.
In paragraph Third of his will, had testator stopped with the word children, no question of the application of the Rule could have arisen. To sustain their position that the addition of the words "or other lineal descendants" invokes the Rule, plaintiffs rely on the case of In re Will of Wilson, supra. In Wilson, after devising lands to her three nephews and a grandnephew, testatrix said, "at there death I want the place to go to there children so on — I would love for it to always be the Spain place." This Court was of the opinion that the phrase so on, coupled with her expressed desire "for it to always be the Spain place," indicated testatrix' intention that each succeeding generation should take the property. The Court held, therefore, that the Wilson language was equivalent to "heirs of the body." The result was that, under the rule in Shelley's Case and the doctrine of merger, the nephews and grandnephew took an estate tail, converted by G.S. 41-1 into a fee simple. See Martin v. Knowles, supra at 432, 142 S.E. at 314-15.
In the instant case, however, we do not think the superadded words "or other lineal descendants . . . to have and to hold the same to them and their heirs, executors and administrators absolutely" demonstrate that testator contemplated an indefinite succession from generation to generation. On the contrary, the finality of the term absolutely and the use of the disjunctive or clearly indicate testator's intention that his estate should vest at the death of Elsie May Johnson and that, should any of her children predecease her, the issue of such child would take the parent's share. As the "absolute" takers, he designated those of her children who survived her or, alternatively, the issue of children predeceasing her. Members of such a class are not heirs "who take generally without exception, as a class of inheritable persons." Miller v. Harding, 167 N.C. 53, 54, 83 S.E. 25, 26. In its reference to descendants, the devise in question refers only to descendants of a particular class of heirs, i.e., predeceased children of the life tenant. Thus, the words "children or other lineal descendants" are words of purchase, and the rule in Shelley's Case has no application.
We hold, therefore, that Elsie May Johnson (Wright) has only a life estate in the property of testator. At her death, her children then surviving, together with the issue of any predeceased child (which issue will represent their parent), will take the fee simple.
The judgment below is
Affirmed.