Lenoir County NcArchives Court.....Croom, Herring Et Al 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 11:58 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

CROOM, ex'or of Whitfield, v. HERRING et al., legatees of Whitfield.

(293) From Lenoir.

B. W. having several children, to the elder of whom he had made considerable 
advancements, made his will, and after devising and bequeathing real and 
personal estate to his wife and to his younger children, and continuing the 
advancements made to the elder, directed the residue of his estate, real and 
personal, to be sold and the proceeds "to be divided among all his heirs, 
according to the statute of distributing of intestates' estates."

Held, the word "heirs," as here used, means heirs quoad the property, and 
not "children," "next of kin" or "heirs at law." By it is to be understood, 
those whom the law appoints to succeed beneficially to the property in 
question. The whole of the property here is personal, for the land being 
directed to be sold, and the proceeds divided, is regarded in this Court as 
personalty. Therefore, the widow of the testator is entitled under that term—
she being by law appointed to succeed to personal property as well as the 
children, all claiming under the same statute. The surplus mentioned in this 
clause, is to be divided among those entitled, without any reference to the 
advancements, or property bequeathed by other clauses.

The bill which was filed 10th April, 1820, stated that Bryan Whitfield, died, 
having made a will, of which the plaintiff was an executor, and the sole 
surviving executor of those who had qualified; that a difficulty had arisen in 
the construction of the will, whereby plaintiff was likely to be injured, by 
reason of conflicting claims, and therefore he prayed that the parties 
interested might be made to interplead with each other, and that for his 
protection, he might have the advice and instruction of the Court.

Bryan Whitfield had many children: to the elder of those, he had made 
considerable advancements, both of real and personal estate. By his will he 
also devised to each of his younger children (who had not been advanced) real 
estate, bank stock, and slaves—and he also devised to his wife real estate, 
and bequeathed to her a few (394) slaves and stock, provisions and farming 
utensils to the value of $1,200; and he also devised and bequeathed to his 
elder children, the estate advanced to them.

The testator, besides the estate so particularly advanced devised, and 
bequeathed, was seised and possessed of real estate, bank stock, slaves and 
other personal property, to the value of $30,000.

After the several devises and bequests to his wife and children above 
mentioned, there came the following clause:

"I leave all my estate not mentioned in this will, both real and personal, 
except negroes and bank stock, to be sold on twelve months' credit, and the 
money arising from the sale thereof, and the debts due me, after discharging 
all my just debts, together with my negroes and bank stock, not disposed of by 
this will, I leave to be divided among all my heirs, agreeable to the statute 
of distributions of intestates' estates."

The widow dissented from the will, and dower in the real estate was allotted 
her, but no notice was taken by them of the personal estate.

Upon the clause above recited, various claims were set up. The widow claiming 
to be entitled as one of the "heirs," according to the statute; the younger 
children, contending that the advancements, made during the testator's life, 
should be brought into hotchpot, if the children advanced, claimed any part of 
the residuum; while the older children insisted, that the residuum should be 
distributed without reference to the advancements; or that the specific 
legacies, as well as advancements, should be taken into account.

The cause was removed to this Court by Affidavit.

Henderson, Judge.—He on whom the law casts an inheritance on the death of the 
ancestor, is designated by the technical word heir. It could not originally be 
used to designate him on whom the law casts the goods or chattel property, for 
it cast them on no one, no person was appointed by law to succeed to the 
deceased ancestor; (395) on his death, they became bona vacantia, and were 
seized by the king on that account, and by him, as grand almoner, applied to 
pious uses, now considered superstitious, for the good of the soul of their 
former owner. Hence it is, that in the common law vocabulary, there could be 
found no technical word to designate such successor. After one was pointed out 
by the Statute of Distributions, the technical word used in regard to 
inheritances, would not answer for that purpose; for very frequently the 
persons are different, the rules of construction being very different from the 
canons of descent. The meaning of the word heir, therefore, retains its 
primitive and technical meaning, when standing alone, and unexplained by the 
context. But as words of every kind, technical as well as others, and 
particularly when used in last wills, are liable to be varied in their 
meaning, to meet the intention of those who use them, when shown in an 
authentic manner the word heir may mean some other person than him on whom the 
law casts the inheritance in a real estate; and the question is, whom does it 
mean, when used in a last will, in reference to personal property?

It is admitted by all, that it does not (unless under peculiar circumstances) 
mean the heir to real estate. By some it is said that it means children; by 
others, next of kin; and by others, all those who are called to succeed to 
personal estate by law (the statute of distributions). Those who are in favor 
of the meaning first mentioned, "children," say, that this is its vulgar and 
common meaning, and as it cannot have its technical one, it must have this. I 
think that the premises are incorrect, and even if correct, that the 
conclusion does not follow; the word heirs, in common conversation, may and 
very often must be understood to mean children; but this arises, not from the 
word alone, but from the context, the manner and cause of speaking; for a 
person to say that another has got an heir, or that he has heirs, must 
unquestionably mean, if the speaker meant any thing, that he has a child or 
children; for, to (396) understand him as communicating something, and at the 
same time to use the word heir, in its extended sense, is next to impossible; 
for there is not a man in a hundred thousand born, without there being some 
one to succeed to his property, should he die instantly, particularly to 
personal property, where foreigners are not excluded. Most of us are born with 
innumerable heirs, if so understood, unless, therefore, we are speaking of 
some foreigner just come among us, and then in regard to real property, or 
some person whose family connection is unknown, or supposed to be unknown, to 
the person spoken to, children must be presumed to be meant by the speaker, by 
the word heirs; for we are not born with children—they are an after 
acquisition; all of us do not have them at any time. It would be an absurdity 
to suppose, that the speaker designed tc communicate to another, to inform him 
that another had that which is common to every man in the community when, by 
not a very strained construction, a sensible and rational meaning can be 
attributed to the speaker. I think, therefore, that the word heirs, of itself, 
unaided by anything else, does not mean children, in common or vulgar 
conversation; although in such conversation, it must be so understood, to give 
to the speaker a rational meaning, or any meaning at all. This arises from 
what may properly be called the context, the subject; and if the premises are 
right, I should think the conclusion wrong; for the word was certainly adopted 
from the law of inheritances, and thereby acquired an analogous meaning, which 
would, by such construction, be entirely lost. Others say, that it means next 
of kin, admitting the analogy, and contending that blood connection is an 
essential constituent in an heir. It is admitted, that by the canons of 
descent in England, that one to succeed as heir, must be of the blood of the 
ancestor; but he is heir, not because he is of the blood, but because he is 
the successor of the estate of the dead man.

The law has prescribed blood as a qualification; but (397) the right to 
succeed, and not the reason wherefore, stamps him with the character of heir. 
The law prescribed the canon of descent, to point out the successor; the 
person who succeeds is heir, not because he succeeds by this or that rule, but 
because he succeeds. And at once to put the argument at rest, it may be asked, 
does the widow who succeeds to the estate of her deceased husband under the 
act of 1801, come to the estate by purchase, or descent? For she must come in 
by the one or the other of these two ways; there is no other. It is very clear 
that she does not come in by purchase; that is, by her own act she is 
perfectly passive; it is thrown upon her by law, as much as it is thrown upon 
the uncle, there being no issue, brothers or sisters, or their issue; that is, 
none whom the law prefers to him. If she does not come in by the purchase, it 
follows, that she comes in by descent. She is, therefore, in such case, the 
heir of the husband—yet she is not of his blood.

Mr. Blackstone, in his discussion of the question, whether the Lord, who comes 
in by escheat, comes in by descent or purchase, has caused some confusion on 
this subject. He could find no canon of descent which pointed to the lord as 
heir to his descent; the lord was passive, at least not active in the 
character of purchaser, i. e. acquirer, and there was evidently a vague notion 
floating in his mind that he is not heir, because not of the blood. At length 
he takes the middle course, the one most apt to be taken by those who are not 
sure which course is right, and says that he succeeds by a kind of quasi 
descent, a kind of caducary succession. The fact is, that he succeeded to the 
estate of his tenant by neither; for he succeeded to his estate not at all, 
for the estate of the tenant expired by his death without heirs capable of 
succeeding him. It expired by the terms of its own limitation; for it was to 
him and his heirs; when they failed, the lands, not the estate, reverted to 
the grantor, the lord of whom he held them. The lord took the lands again in 
virtue of that right of reverter, which in law is called a seignory. He comes 
in not under, (398) or representing the tenant, but above him, and by virtue 
of a different estate. Exclude the idea of blood, and it is matter of surprise 
how it could be doubted that the widow is not included in the word heir, when 
applied to personal property. Her claims to the succession are precisely the 
same with the next of kin; both unknown to the common law, and both given by 
the same statute. Why the word heirs, should be translated into next of kin 
cannot be accounted for, otherwise than by blending blood connection with 
heirship; and if the meaning either of children, or next of kin, is to be 
received, grandchildren, where there are children, will be excluded; for it is 
said that grandchildren cannot take under the description of children where 
there are children, nor under the description next of kin; for grandchildren 
are not next, whilst there are nearer, and in the statute the evil is guarded 
against in lineal accession, and in collateral, as far as brothers and sisters 
children; the Legislature being aware that the more remote of kin would be 
excluded by the nearer, under the description next of kin.

These afford insuperable reasons why the word heir should not be understood to 
mean either next of kin or children. If, therefore, it neither means next of 
kin, nor children, there can be no objection to give it a meaning analogous to 
what is the proper technical meaning of the words mutatis mutandis, i. e., 
they whom the law has appointed to succeed to the personal estate of dead men, 
who make no appointment themselves; as in real estates in such cases, the heir 
who is appointed by law to succeed the dead man. By this definition, all those 
appointed to take under the statute of distributions, are embraced, the law-
speaks and designates the heirs. Unless this expression is tolerated and 
permitted to bear this meaning, we shall be totally unable to express the idea 
without using a phrase instead of a term;, for I know of no other term which 
will convey the idea. Distributee is sometimes used, but scarcely ever without 
an apology for it; a term of our (399) own coinage, which is not to be found 
in Johnson's Dictionary, in Jacob's Law Dictionary, nor in any other that I 
know of. I do not recollect to have seen it, in any English work of note, or 
not of note. As far as I have been able to ascertain, the English authorities 
warrant this construction: I am very well satisfied that they are not against 
it. Sir William Grant very lately said, he was not, in the case then under 
consideration, called on to decide it, but that his opinion was, heirs, when 
applied to personal property, meant heirs quoad the property, and he repeated 
the same thing in another case.

It is true that there is a case to be found in Ambler (who is said to be not 
very high authority), decided by the Master of the Rolls, Sir Thomas Clarke, 
where it is said, that heir means children; but the absurdity to which this 
led him, is its own refutation. He first said that heirs meant children, and 
as grandchildren where there were children, did not mean children, he excluded 
the grandchildren. He should have recollected that nullium simile est idem; 
when drawing from the likeness he had taken, he should now and then cast an 
eye on the original, and the truth is, all who thus translate will be carried 
into the same absurdity.

Many cases were cited. I will examine a few of the most prominent. In 1 Ves., 
84, the testator directed that certain personal property, after the death of 
his wife, to whom he had given the greater part of his estate (and possibly 
the whole) for life, should be equally divided among his relations, according 
to the statute of distributions. It was decided, that it was not intended by 
the testator, by the words relations, to include his wife; first, because the 
wife is not the relation of the husband—which means blood connexions—and I 
think properly, the husbands and wives of such, who are by marriage identified 
with each other; secondly, he had given a life estate in the greater part, and 
probably all of the same property, which incongruity raised a presumption that 
he did not intend to include her. (400) It was farther said, that she was not 
brought in by the words according to the statute of distributions; that by 
such reference to the statute, he did not intend to point out who was to take, 
for that he had done before by the word relations; but only how they are to 
take. I express no opinion on the correctness of this latter part, for it does 
not affect this case, or this part of it. In 18 Ves., 53, the words are my 
next of kin, as if I had died intestate. It was held, and very properly, that 
the widow was not intended by these words; the wife is not kin, i.e., of kind 
to her husband. That had been long settled, soon after the statute of Henry 
VIII, relative to granting administrations. The words, as if I had died 
intestate, as said above, did not point to the persons who were to take, but 
to the manner, and they could not enlarge by mere implication, the known and 
definite meaning of the words next of kin. In the same book, p. 49, the words 
are next of kin or personal representatives. As it is the office and nature of 
a limited description, to control and limit a general one, the general 
description, personal representatives, was controlled and limited by the more 
limited and restricted one next of kin; at least that is the reason assigned. 
The case of Vaux & Henderson, decided in 1806, by Sir William Grant, to be 
found in Jacobs & Walker, 387, in a note, was not, as I conceive, upon the 
point; the question there, was not, what particular individuals composed the 
heirs, or more properly were comprised under the description; but which class 
was entitled. The question arose in Coutts' will, who had bequeathed to Vaux 
£200, and in case of his death before him, to Vaux's heirs; Vaux died before 
him, the contest was between those who answered the description at Coutts' 
death, and those who did so at Vaux's death. The reporter called them the next 
of kin, a phrase no doubt of his own, as the question who they were, did not 
arise; the contest was between classes, and not individuals, a term therefore 
was used different from the purpose, without any regard to the point, whether 
it embraced all, and (401) excluded all, and excluded none of those who 
contested the question. The words came nearer to it than any other words which 
he could well use; for, as was said before, there is no technical word, and he 
would dislike, as a lawyer, to use the word heirs, when speaking of personal 
property. It was quite natural for him to use the word which embraced the 
greatest number of individuals composing the class, although it might exclude 
some; for it did not interfere with the question the note was designed to 
illustrate. The case proves nothing; for aught that appears, the widow might 
have been named in each class, if she was named in one she was in the other. 
Her claim, except as to the quantum, possibly by there being more in one class 
than the other, was not affected by the question. And as a confirmation that I 
am right in this view of the case, the decision was made by Sir William Grant, 
whose opinion I have before stated.

I must not pass over the case of Whitehurst's heirs, decided in the late 
Supreme Court, in which decision I participated, and which principle I think 
is at variance with the opinion here delivered. I have no hesitation in 
saying, that the decision was wrong. It was decided without argument and on 
the authority of a case in Pere Williams, which I confess I did not then 
understand.

Upon the whole, I am satisfied, that this testator meant by the words "to be 
divided among all my heirs agreeable to the statute of distributions of 
Intestates' estates," to call to the succession all those whom the law 
appoints to succeed to the personal estate of a dead man, in default of his 
having made an appointment himself; and that his widow, in this case, is one 
of them. Upon the point of bringing advancements into account, after much 
hesitation, I am of opinion, that the property passing under that clause in 
his will was not to be affected by any disposition which he had at any time 
made of any other property; that the statute of distributions was referred to, 
to designate who he meant by the word heirs, and to point out the man-(402)ner 
of the division of that property.

I think that the widow has abandoned her claim to the $1,200; it is land, it 
was given in lieu of the land, taking dower satisfies for all claims for land; 
she cannot have her full share of the land, and that which was intended to 
make her share a full one.

The Master of the Court will take an account of the personal estate, in 
default of the parties appointing some one to do it; and in either case, a 
report will be made to this Court.

The lands being directed to be sold, and converted into money, are considered 
in this Court as personal estate. The costs to be paid out of the fund. By the 
Court,

Decree accordingly.

Approved. Stow v. Ward, 12 N. C., 67; Brown v. Brown, 37 N. C., 309; Radford 
v. Radford, 41 N. C., 490; Henry v. Henry, 31 N. C., 278; Freeman v. Knight, 
37 N. C., 72.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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