# Whitley v. Arenson

> Supreme Court of North Carolina · January 31, 1941 · 219 N.C. 121

URL: https://www.frixlaw.com/law-library/cases/6698373

## Case

- **Full name:** FANNIE V. WHITLEY v. L. ARENSON
- **Court:** Supreme Court of North Carolina
- **Decided:** January 31, 1941
- **Citations:** 219 N.C. 121; 12 S.E.2d 906; 1941 N.C. LEXIS 275
- **Precedential status:** Published
- **Opinion:** Dissent by Claekson
- **Judges:** Claekson, Sbawell, Stacy
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6698373

## Opinion text

ClaeksoN, J.,
dissenting: The only material exception and assignment of error to be considered: Did the court below err in signing the judgment set out in the record? I think so.
N. C. Code, 1939 (Miehie), sec. 1739, is as follows: “‘Heirs’ construed ‘children’ in certain limitations. — A limitation by deed, will, or other writing, to the heirs of a living person, shall he construed to be the children of such person, unless a contrary intention appear by the deed or will.”
It seems that the main object of the section is to convert a contingent into a vested remainder under .certain circumstances. It seems also to have been the purpose of the act to sustain a direct conveyance to the heirs of a living person. As there can be no heirs during the life of the ancestor, such a conveyance at common law would have been void unless there was something in the deed which indicated “that by ‘the heirs’ was meant the children of the person named.” 3 "Washburn Eeal Prop., 882. The act in question provides that in such a case the word “heirs” shall be construed to mean “children” and the limitation therefore would be good. By this construction of the section it does not affect the rule in Shelley’s case. Starnes v. Hill, 112 N. C., 1 (2 and 23) ; Hartman v. Flynn, 189 N. C., 452 .
*128 A deed to “the heirs” of John A. Barrett, he being still alive, although void at common law, is good under the section, and is construed to be a limitation to the children of John A. Barrett, and includes afterborn children. Graves v. Barrett, 126 N. C., 267 .
Section 1739, supra, providing that a limitation to the heirs of a living person shall be construed to be the children of such person, applies only when there is no precedent estate conveyed to said living person. Jones v. Ragsdale, 141 N. C., 200 .
In Tate v. Amos, 197 N. C., 159, at p. 161 , we find: “This Court has uniformly held that a devise to ‘A,’ and her children, ‘A’ having children, vests the estate to them as tenants in common. Hunt v. Satterwhite, 85 N. C., 73 ; Silliman v. Whitaker, 119 N. C., 89 ; Lewis v. Stancil, 154 N. C., 326 ; Cullens v. Cullens, 161 N. C., 344 ; Snowden v. Snowden, 187 N. C., 539 ; Cunningham v. Worthington, 196 N. C., 778 .”
In Mayberry v. Grimsley, 208 N. C., 64 (65), citing authorities, it is written: “Plaintiff’s action is grounded on the principle, settled by numerous decisions, that a conveyance or devise to Nonnie and her children’ vests in Nonnie and her children then living, including any in ventre sa mere, as tenants in common, the present estate conveyed or devised.”
In Edmondson v. Leigh, 189 N. C., 196 (201), citing authorities, it is said: “It is settled law in this State that the intent of the testator, as expressed by the terms and language of the entire will, must be given effect unless in violation of law. ‘Every tub stands upon its own bottom,’ except as to the meaning of words and phrases of a settled legal purport. A will must be construed ‘taking it by its four corners.’ ” Williamson v. Cox, 218 N. C., 177 (179) ; Smith v. Mears, 218 N. C., 193 (197); Shoemaker v. Coals, 218 N. C., 251 .
In Boyd v. Campbell, 192 N. C., 398, at p. 401 , we find: “Whatever the former doctrine may have been, the courts do not now regard with favor the application of such technical rules as will defeat the obvious intention of the parties to a deed, it being an elementary rule of construction that their intention as expressed in the deed shall prevail unless it is repugnant to the terms of the grant or is in conflict with some canon of construction or some settled rule of law. Seawell v. Hall, 185 N. C., 80 ; Lumber Co. v. Herrington, 183 N. C., 85 ; Pugh v. Allen, 179 N. C., 307 ; Williams v. Williams, 175 N. C., 160 ; Springs v. Hopkins, 171 N. C., 486 .”
In Buckner v. Maynard, 198 N. C., 802 , it was held: “While ordinarily and standing alone an estate conveyed by deed to ‘R and children, her bodily heirs and assigns,’ would carry a fee-simple estate to R, it will not so operate when taking the deed in its entirety, the intent of the *129 grantor is ascertained to convey the lands to E and ber children as tenants in common, and such intent is in conformity with like expressions used in the other material and relevant portions of the deed.”
The language in the present deed (taking it by its four corners), is as follows: (1) “This Indenture, Made this the 1st day of March in the year of our Lord one thousand nine hundred and twenty between J. I. Efird and wife A. E. Efird of the County of Stanly, and State of North Carolina, of the first part, and M. E. J. Kelly and her heirs by T. D. Kelly, of the County of Stanly, and State of North Carolina, of the second part.” . . . (2) “Have bargained, sold and conveyed, and by these presents do bargain, sell and convey unto the said parties of the second part, their heirs and assigns, the following described real estate, situate, lying and being in Endy Township, in the County of Stanly, and State of North Carolina, bounded as follows, to-wit: (describing same).” . . . (3) “TO HA YE AND TO HOLD, all and singular the above granted premises, with the appurtenances, unto the said parties of the second part, their heirs and assigns forever.” . . . (4) And the said J. I. Efird and A. E. Efird, parties of the first part, for themselves their heirs, executors and administrators, do hereby covenant with the said parties of the second part, their heirs and assigns,” etc.
In the deed in controversy the grantees are set out in the premises as M. E. J. Kelly and her heirs by T. I). Kelly. In the granting clause, habendum clause, the covenant, and the warranty, the grantees are referred to as the parties of the second part, their heirs and assigns, and not as M. E. J. Kelly, her heirs and assigns. There is no estate precedent and the word “heirs” in the premises means “children.”
Construing the deed and “taking it by its four corners,” the irresistible conclusion is that M. E. J. Kelly and plaintiffs, her children, took an estate in the lands described in the deed as tenants in common.
The main opinion and the defendants in their brief cite several cases to support their contention, but which I think distinguishable from the present case.
The facts in Jones v. Ragsdale, 141 N. C., 200 : On 19 December, 1882, Alexander W. Bobbins conveyed to “Zilphia S. Jones and her heirs by her present husband, Levy Jones, the land in controversy . . . To have and to hold the said land and appurtenances thereunto belonging, to the said Zilphia Jones and her heirs by her present husband, and assigns to her only use and behoof.” The habendum clause was consistent with the granting clause. The statute, N. C. Code, 1939 (Michie), sec. 1734 — Eee-tail Special was converted into fee simple became applicable. This case states further: “As stated in Marsh v. Griffin, 136 N. C., 334 , ‘The Code, section 1329 (now Eevisal, sec. 1583) (Sec. 1739, supra), providing that a limitation to the heirs of a living person shall *130 be construed to be tbe children of such person, applies only when there is no precedent estate conveyed to said living person.’ ”
In Revis v. Murphy, 172 N. C., 579 (580), the deed contained the following: “Do give, grant, bargain, sell, convey, and confirm unto the party of the second part, her heirs by the body of F. H. Revis, and assigns forever. . . . ‘To have and to hold the above described land and premises, with all the appurtenances thereunto belonging or in any wise appertaining unto the said party of the second part, her heirs and assigns, to the only use and behoof of her and her said heirs and assigns forever. And the said parties of the first part do hereby covenant to and with the said party of the second part, her heirs and assigns, that the said parties of the first part are lawfully seized in fee simple of said land and premises, and have the full right and power to convey the same to the said party of the second part in fee simple, and that said land and premises are free from any and all encumbrances, and that they will, and their heirs, executors, and administrators shall, forever warrant and defend the title to the said land and premises, with the appurtenances, unto the said party of the second part, her heirs and assigns, against the lawful claims of all persons whomsoever.” (Italics ours.) At p. 581: “Counsel for defendant relied on Kea v. Robeson, 40 N. C., 373 ; Rowland v. Rowland, 93 N C., 214; Gudger v. White, 141 N. C., 507 ; Triplett v. Williams, 149 N. C., 394 ; Beacom v. Amos, 161 N. C., 357 ; and other cases to the same effect, which decided that the intention of the grantor must be sought for in the language of the entire deed and the latter construed in accordance therewith; but that is what we do when we hold this estate to be a fee simple, as the grantor has used language which conveys that kind of estate and no other. If we are to ascertain his intention by his words, that is the clear result, and if the law did not require us to give that construction to the deed, by reason of the particular words of limitation used, 'her heirs by the body of F. II. Revis,’ and the statute defining what the same shall mean, we would, by a survey of the whole deed, construing one part with another, reach the same conclusion.”
In Blake v. Shields, 172 N. C., 628 , it was held: “An estate granted to 'B,’ 'and to the heirs of her own body,’ etc., 'it being expressly understood that the hereinafter described premises are to descend at her demise to the heirs of her body,’ etc., with tenendum 'to have and to hold the above particularly described premises to the said party of the second part and to her heirs forever,’ conveys an estate in fee tail to B. which our statute converts into a fee simple absolute. Revisal, sec. 1578 (now sec. 1734, supra).”
In Paul v. Paul, 199 N. C., 522 , the facts were: “It appears from the facts found by the trial court that on 1 June, 1905, John E. Paul *131 executed and delivered to Mattie Paul a deed in which for a consideration of $3,000 he conveyed To said Mattie Paul and the heirs of her body by Smith Paul begotten, or upon failure thereafter her death to the nearest heirs of Smith Paul, a certain tract or parcel of land in Pamlico County,’ containing fifty aeres. The habendum is £to the said Mattie Paul, aforesaid heirs and assigns, and the covenants were made with £said Mattie Paul, aforesaid heirs and assigns.’ . . . (p. 523). "When John F. Paul made the deed to Mattie Paul, she had two living children by her husband, Smith Paul, and within ten lunar months thereafter another child, the defendant, Gladys P. Paul, was born to them. Mattie Paul and Smith Paul, her husband, are living.” The Court said (p. 523) : “The judge presiding at the trial was of opinion that John F. Paul’s deed conveyed the land in controversy to Mattie Paul and the children living and in esse as tenants in common. This would have been correct if the deed had been made to Mattie Paul and her children. Tate v. Amos, 197 N. C., 161 . But it was executed £to Mattie Paul and the heirs of her body by Smith Paul begotten.’ The estate thus created was under the old law a fee tail special (2 BL, 113), which our statute enlarges into a fee simple. C. S., 1734. . The law is clearly stated in Revis v. Murphy, 172 N. C., 579 , and Jones v. Ragsdale, 141 N. C., 200 . In the last case the conveyance was £to Zilphia S. Jones and her heirs by her present husband’; and at the time the deed was executed they had one living child. It was held that Zilphia and her child were not tenants in common, the statute (C. S., 1739), providing that a limitation to the heirs of a living person shall be construed to be the children of such person, being applicable only when there is no precedent estate conveyed to the living person. Marsh v. Griffin, 136 N. C., 334 . . . . (p. 523) This inartificial language reminds us that, as said by Lord Chief Justice Wills, such a construction should be made of the words of a deed as is most agreeable to the intention of the maker, because ‘words are not the principal thing in a deed, but the intent and design of the grantor.’ Cobb v. Hines, 44 N. C., 343, 349 . The intent must be such as is expressed in the deed and not such as may have existed in the grantor’s mind if inconsistent with the language he used. McIver v. McKinney, 184 N. C., 393 ; West v. Murphy, 197 N. C., 488 . Technical rules of construction serve only as aids to this end, because the meaning of the deed largely depends upon the circumstances of the grantor as they appear in the deed itself.” (Italics mine.)
It will be seen that the habendum is “to the said Mattie Paul aforesaid heirs and assigns” and the covenants were made with “said Mattie Paul, aforesaid heirs and assigns.” Construing the deed as a whole, the Court said, at p. 534: “By this construction Mattie Paul took an estate in fee simple, defeasible upon her dying without bodily heirs by Smith Paul, living at her death.”
*132 This dissent is based on the intention of the maker, construing the will in its entirety.
The cases cited in the main opinion are not applicable.
In Harrington v. Grimes, 163 N. C., 76 — the deed was to “N. J. Buckner and her bodily heirs,” and in the habendum “said N. J. Buckner and her bodily heirs and assigns.” Hoke, J., said, at pp. 77-78 : “Under the old law, the deed in question would have conveyed to N. J. Buckner an estate in fee tail, converted by our statute into a fee simple (Revisal, sec. 1578), and his Honor correctly ruled that plaintiff could make a good title (citing authorities). ... In those cases it was held that, on a perusal of the entire instrument and by reason of the language in which same was expressed, a deed in the one case and a will in the other, it plainly appeared to be the intent of the grantor to convey only a life estate to the first taker, and that the words 'bodily heirs’ and 'heirs of the body’ did not refer to those persons as inheritors of such taker, but were used as a descriptio personarum, carrying to them an estate in remainder and as purchasers from the grantor. But no such intent can be gathered from this instrument, nor does it contain any words or expressions to qualify or affect the ordinary meaning of the words 'bodily heirs’ in connection with the estate limited to N. J. Buckner, and the deed, as stated, has been properly held to convey to such grantee an estate in fee simple.”
In Sessoms v. Sessoms, 144 N. C., 121 , the language in the will was (p. 122) : “I lend to my grandson, Joseph W. Sessoms, the "Wyman tract of land, whereon his father, H. B. Sessoms, lived and died, the number of acres not known, to him and his lawful heirs of his body forever; and if he should die without lawful heirs of his body, I then lend it to his sister my granddaughter, Martha Sessoms, and her lawful heirs of her body forever.” Hohe, J., at p. 123, said: “The clause in question conferred on Joseph W. Sessoms an estate-tail, converted by our statute into a fee-simple, Revisal, Sec. 1578; and the court below was correct, therefore, in holding that Joseph W. Sessoms acquired an absolute estate under the terms of his grandfather’s will.”
In Harrington v. Grimes, 163 N. C., 76 , it was decided that an estate to B. and his bodily heirs under the old law would have conferred a fee tail, which, under our statute, where a contrary intent may not be gathered from the instrument, construed as a whole, is converted into a fee simple.
In Willis v. Trust Co., 183 N. C., 267 , the deed was “To his daughter Mary Regan and her bodily heirs.” The other clauses and the habendum clause is to “Mary Regan and her bodily heirs and to their only use and behoof forever.” The Court said (at p. 271) : “Applying these principles, we conclude that the deed should be construed as if it read 'to *133 Mary Began and the heirs of her body (a fee simple, C. S., 1734), and if she should die not having such heirs or issue living at the time of her death, then to the heirs of the grantor.’ 0. S., 1737.”
In Morehead v. Montague, 200 N. C., 497 : “A conveyance of land ‘to Della Todd during her lifetime and at her death to the heirs of her body’ without additional words, would transfer the fee.” . . . Adams, J., said (at p. 499) : “Under the former law the estate would have been a fee tail special, but our statute provides that every person seized of an estate tail shall be deemed to be seized thereof in fee simple. C. S., 1734.”
All these decisions are premised on language which converted the fee tail under C. S., 1734, into a fee simple. In the present action the intention, as shown by the whole deed, is to the contrary. Any other construction would nullify clear English language.
The true rule is stated by Devin, J., in Williamson v. Cox, 218 N. C., 177 (179) : “The cardinal principle in the interpretation of wills is that the intention of the testator as expressed in the language of the instrument shall prevail, and that the application of technical rules will not be permitted to defeat an intention which substantially appears from the entire instrument. Meyer v. Bulluck, 210 N. C., 321 , 186 S. E., 356 ; Smith v. Hears, post, 193. However, accepted canons of construction which have become settled rules of law and property cannot be disregarded. As was said in May v. Lewis, 132 N. C., 115 , 43 S. E., 530 : ‘It is our duty, as far as possible, to give the words used by a testator their legal significance, unless it is apparent from the will itself that they are used in some other sense.’ 4 Kent’s Com., 231.” Shoemaker v. Coats, supra.
A devise to the “heirs” of a person will be construed to be his “children” in the absence of a contrary intention expressed in the instrument. Moseley v. Knott, 212 N. C., 651 .
“In wills, in order to effectuate the intention of the testator, the word ‘heirs’ is sometimes construed to mean the ‘next of kin’ (1 Jac. & W., 388) and children (Ambl., 273.).” Cyc. Law Diet. Shumaker and Longdorf, p. 436.
“It may be a word of purchase, and is frequently deemed synonymous with 'children/ Cultrice v. Mills, 97 Ohio St., 112 , 119 N. E., 200 , 201.” Black’s Law Diet., p. 888, citing a wealth of authorities.
To give meaning to the language used in the entire deed, indicates that the words “her heirs” were used as synonymous with children. This construction would harmonize the whole deed and all its parts and give the language, their heirs and assigns, in other parts of the deed the usual, ordinary and accepted interpretation, that more than one taker was indicated in the deed.
*134 The eases cited by defendants deal with instances where the clear language of the deed shows a fee tail, which by statute becomes a fee simple, or where the deed is taken as a whole to gather the intention that a fee was intended to be conveyed.
In the present case to construe the deed as contended for by defendants would abrogate the “four corners” rule to gather the intention of the entire deed and nullify four times the clear language in the deed “their heirs and assigns.” Whose heirs and assigns? “M. E. J. Kelly and her heirs (meaning children) by T. D. Kelly.”
All the decisions are to the effect that the “polar star” is to gather the intention from the entire instrument. The clear language of the deed should not be struck down by technical construction. The English language is known to those who make deeds and wills, but the technical decisions of a court are sometimes unknown. They become a “feather on the water” and are blown about by every passing breeze of judicial construction. Titles are made so uncertain that instead of the intention from the language used governing the deed or will and the construction from its “four corners,” every case will have to come to this Court to discover what specialized meaning will be given the English language and what rights owners have in their property; instead of settling titles to property, overly technical constructions create chaos. We have in the present majority opinion no beaten path to guide us, but are going into the jungle of judicial construction.
Sbawell, J., concurs in dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6698373. Public record. Not legal advice.