Unknown County NcArchives Court.....Jarvis, V. Wyatt 1825
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Source: Nc Court Reports, Vol 11, 1826
Written: 1825

December Term 1825

(227) JARVIS et al. v. WYATT.

A devises lands to J. W. and his wife during their lives, and to the longest 
liver of them, and also bequeaths to them certain slaves, &c., for their lives 
as aforesaid; and after their decease he gives said property, real and 
personal, unto the heirs of their bodies lawfully begotten, to be equally 
divided among them, to them and their heirs forever; J. W. and wife are 
tenants for life only, and the heirs of their bodies take an estate in fee in 
the lands in remainder as purchasers, the remainder is contingent, and on the 
decease of the surviving donee for life, vests in such persons as are heirs of 
the bodies of J. W. and wife; a child, therefore, of J. W. and wife, who dies 
in the lifetime of the surviving donee, had no estate in the lands.

According to the intent of the testator, the personal property, on the decease 
of the surviving donee for life, goes over with the lands to the remainder 
men; the heirs of the body of J. W. and wife take an absolute property in the 
personality on the decease of the surviving donee for life, and the executor 
or assignee of a child of J. W. and wife, dying before the wife, has no 
interest in the personalty.

This bill was filed in 1893 for foreclosure of a mortgage. Ambrose Knox, by 
his will duly executed, devised the use and occupation of four-fifths of his 
plantation, &c., to Jbhn Wyatt and Parthenia his wife, during their natural 
lives, and to the longest liver of them; and he also bequeathed to them the 
use of certain slaves and their increase during their natural lives as 
aforesaid; and farther, during their lives as aforesaid, the use of all his 
stock and household furniture and plantation utensils of whatever kind new in 
their possession; and after their decease, he gives and bequeaths all and 
singular the property, both real and personal, above mentioned (for their use 
during their lives) unto the heirs of their bodies law fully begotten, to be 
equally divided among them, to them and their heirs for ever. The testator 
died in the year 1796. Upon his death, John Wyatt entered upon the lands, and 
had possession of the personalty until 1808, when he died; his widow surviving 
him, took possession of the real and per-(228)sonal estate, and continued it 
during her life. In 1804, William Wyatt, one of the children of John and 
Parthenia, by deed mortgaged to the complainants all his interest in the lands 
and slaves mentioned in the above devise and bequest. William Wyatt died in 
1817, and was survived by his mother Parthenia, who departed this life in the 
year 1821. The bill was filed against the defendants, who were the children of 
William Wyatt, and were his heirs and distributees. On the death of Parthenia, 
they had taken possession of the land and slaves mentioned in the mortgage; 
they were the heirs of the body of John and Parthenia, and by their answers 
insisted that William Wyatt had nothing in the premises in 1804 when he 
executed the mortgage, and that on the death of Parthenia the lands belonged 
to them, either under the will of Ambrose Knox, or by descent from Parthenia, 
and that the slaves were their property either under the said will or as the 
distributees of Parthenia. The sole question in the case was, whether William 
Wyatt had, in 1804, any interest in the lands and slaves. The Court below 
being of opinion that he had not, dismissed the bill of the complainants with 
costs, from which they appealed.

Gaston, for the appellees.-The Court below decided that the mortgagor, at the 
date of his deed, had no estate or interest in the real or personal property 
which could pass. It will not be denied, that every thing that may be 
considered property, remainders, reversions, possibilities and executory 
interests, are transmissible, descendible, devisable and assignable. It is so 
laid down in Powell on Mortgages, 25; and in Jones v. Roe and Perry (3 Term, 
88), it was decided, that a possibility coupled with an interest may be 
devised.

To support the decree below, it must be shown that (under our act of 1784, "to 
do away entails,") the whole estate passed to Wyatt and wife, and that on his 
death the wife was seized of an estate in fee in possession. (229) And even if 
this be correct, the decree below was wrong as to the personalty, for the 
husband, as such, was absolute owner of whatever property in that was given to 
his wife, and on his death, William, his son, was entitled to a distributive 
share of the slaves. (Com. Dig. Baron and Feme E., 3.) Whether William had an 
interest in the lands depends on the inquiry whether the words "heirs of their 
bodies begotten," used in the devise, be a limitation of the estate given to 
the hnsband and wife, or whether they designate the heirs as purchasers of an 
estate in remainder after the life estate of the husband and wife; the 
appellees must contend that, according to the rule in Shelly's case, they are 
to be regarded as limiting a fee to the baron and feme.

This rule, according to Hargrove, is adopted to prevent the qualities and 
properties of a purchase annexing to a real descent, to render impossible the 
creation of an amphibious irheritance, that is, a freehold with a perpetual 
succession of heirs without tho other incidents of an inheritance; an 
inheritance in the first ancestor, with a privilege of vesting in the heirs by 
purchase. (Hargrave's Law Tracts, 565, 572.)

This rule is not the medium to find out the intent; it supposes the intention 
to be previously discovered; that is that there is a gift of a freehold to 
some person, and a superaddition of a succession of heirs to that person; 
making him the ancestor, terminus or stirps, by reference to whom the whole 
generation and posterity of heirs is to be ascertained. (Hargrave's Law 
Tracts, 574.)

The ordinary rules of interpretation are to be first resorted to, to arrive at 
the meaning of the testator. His meaning must be first adjusted without 
reference to the rule. (Ibid, 575, 576.)

If it appears that the testator did not mean to use tho words "heirs," 
or "heirs of the body, &c.," in their full and technical sense, but intended 
to designate the person who should be "heir," or "heirs of the body" of (230) 
the donee for life at his death, and to make such person an ancestor, terminus 
or stock for a new succession, then there is no room for the application of 
the rule. (Ibid, 576.)

The sole inquiry is, whether the remainder to tho heirs of the donee for life 
be designed to include the whole of his inheritable blood, the whole line of 
his heirs, or to designate an individual answering to the description of heir 
of the donee for life at his death, to whom an inheritance is to be given. 
(Ibid, 576, 577.)

These principles are sanctioned by the decision of the Chancellor in Jones and 
Morgan (1 Bro. Ch Ca., 206). To apply them to the case under consideration. It 
is perfectly clear, the words "heirs of the body," in the will of Knox, were 
not meant to include the whole line of heirs, but individuals only of a 
certain character, existing at the death of the tenants for life. For to 
suppose that by "heirs of the body" is intended the whole line of succesion, 
is to impute to the testator an unlawful and impracticable intention, to wit, 
to create an entail; and where words are susceptible to two meanings, one 
unlawful and the other lawful, the latter is to be presumed to be the sense in 
which the words are used.

Secondly. It cannot be supposed that the testator meant to entail the trifling 
farming utensils, carts, ploughs, &c, as well as the lands and slaves.

Thirdly. Testator anxiously expresses his intention not to give the property 
to Wyatt and wife, but the use only. They may take a life estate; it is clear 
no greater estate was given them.

Fourthly. The words "after their decease I give, &c.," is a guarded 
expression, and shows the testator's intent to give them a life estate only; 
the moment of their decease was to be that of the commencement of a new 
estate. The words "after the decease," have been regarded in executory devises 
as tying up the contingency to the moment of death, and changing the general 
meaning of dying (231) without issue. Penbury v. Ekons (2 P. Wms. 563), 
Wilkinson v. South (7 Terra 555).

Fifthly. The gift "to the heirs of their bodies begotten, to be equally 
divided among them," is conclusive to show that the "heirs of the body" were 
to take as purchasers; for if they were to take as heirs by descent this 
equality of division is absurd; the division must be governed by the statutes 
regulating descents. If there were two children, and both dead at the death 
the tenants for life, the one leaving an only child, and the other leaving 
many children, the equality of division could not take place by the law of 
descents. Again, the words "equally divided between them," have a just 
application to individuals taking a new estate; but are absurd if applied to 
series of heirs taking in succession from and upon the death of each 
individual heir.

Sixthly. The gift is not only "to the heirs of the body," but "to them and 
their heirs forever." These words of a limitation in fee engrafted on the 
devise to the heirs of the body, show beyond any reasonable controversy, that 
the "heirs of the body," were individuals of a certain description, who, at 
the death of the donees for life, acquired anew estate in fee, and that they 
were termini stocks or ancestors from whom the succession of heirs in fee were 
to be derived.

The construction put upon the clause of the will by the appellants, gives to 
every word its proper meaning, makes a reasonable disposition of the property, 
and supposes the intent of the testator to have been a lawful one.

Excellent directions are given by Butler (Note to Co. Lit., 376, b.), as to 
the rule in Shelly's case. First, to ascertain from the incorrect and 
inartificial language of the will the meaning of the testator, and to express 
it with technical accuracy; and then to inquire whether the estates created by 
the terms of art be lawful or not. Let this be done in the clause of Knox's 
will. It is an estate to Wyatt and wife for life; remainder in fee to those 
who, at (232) their death, should be heirs of their bodies begotten, to them 
for life, remainder in fee to their children. The same as in Doe v. Perran (3 
Term 484). Doe v. Profest (4 John, 61).

According to Justice Blackstone, when it appears that heirs are intended to 
take as purchasers they shall so take; and this may appear either when words 
of explanation are added to the words heirs, &c., whereby it appears, issue 
sons, eldest son, &c., were meant; or where the testator hath superadded words 
of limitation to and upon the heirs to whom the estate is given. Argument in 
Perran v. Blake (Harg. Law Tracts, 505, 506).

It is easy to show, that in wills like this, and where the evidence of intent 
was not stronger, that these words "heirs of the body," have been interpreted 
children, and held so to be words of purchase. They were so interpreted in 
Cheek v. Day, reported in Fitzg., 24, and Cro. Eliz., 313, and in Archer's 
case, 1 Rep., 66, both cases being cited in Justice Blackstone's argument. 
(Hargrove's Law Tracts, 506.)

It is true, in these cases, "heir" in the singular number was used and 
not "heirs." In England, the eldest son takes as heir; and if there be no son, 
all the daughters take; and though there may be more than one daughter, yet 
they take but as one heir. With us all the children take as tenant's in 
common, and are all heirs. Therefore, the words "heirs" in our law answers to 
the word "heir" in the singular number at the common law, and all the 
arguments and reasonings applicable to the superaddition of words of 
limitation on a gift to the "heir" in the singular number in a devise of lands 
in England, hold with equal strength to a like superaddition in a gift to 
the "heirs" in the plural number under our statutes of descent; for "heir" 
would not apply with us; it must be heirs in the plural. See the opinion of 
Lord Mansfield in Doe v. Laming, 2 Burr. 1110.

Luddington v. Kirne (1 Salk., 234), is a devise to (233) "issue male," and not 
to heirs of the body, and in all other respects resembling tho case under 
consideration.

In Lane v. Davis (2 Ld. Raym., 1561), heirs of the body are explained by the 
context to mean children.

Den on demise of Long v. Laming (2 Burr., 1119), referred to above, is a 
devise of goods and lands in almost the words of Knox's will, and the 
words "heirs of the body" are construed to mean children.

Goodtitle v. Herring (1 East 264), Doe, lessee of Strong, v. Golf (11 East, 
668), show that heirs of the body may be words of purchase; and in Goodtitle 
v. Harris, 276, per Le Blanc, there is no rule of law to prevent the 
words "heirs of the body" from creating a purchase if so intended.

It is, therefore, submitted for the appellants, that the whole estate did not 
pass to Wyatt and wife by the will of Knox, but a life estate only, with a 
remainder to their children living at the death of the testator and to after-
born children as they should come in esse; and that William Wyatt, being one 
of the children surviving at the death of the testator, took a vested 
remainder in the property, real and personal, devised to him by Knox, and that 
his interest passed to the complainant by the deed of mortgage of 1804, and 
therefore the decree below must be reversed.

Hogg, for appellees.—William Wyatt had no estate in the property mortgaged to 
the complainants. It has been argued for them, that even if he did not take 
directly under the will of Ambrose Knox, yet as distributee of his father John 
Wyatt, he had some interest in the personalty. The mortgage and the bill for 
foreclosure contemplate no claim of William under his father John as 
distributee. It is not mentioned in the case whether the father died 
intestate, or whether there was any administrator or executor, and neither of 
them is a party to the present bill, nor is any relief asked against them. So 
that if (234) the complainants claim from John Wyatt, they should file another 
bill. But John Wyatt, the father, had no interest in the property to transmit 
to his executor. The personal property, on this supposition, is bequeathed by 
Ambrose Knox to the husband and wife for their joint lives, and to the 
survivor absolutely. It is argued for the complainants, that a gift of the 
personalty to the husband and wife jointly, and their heirs, is a direct gift 
to the husband. It is conceded by the defendants, and farther, that every 
personal chattel of the wife in the possession of the husband, or which, by 
possibility, may come to her possession during the coverture, shall be his, 
and that he may release or assign it without taking possession, so as to 
defeat all survivorship in the wife. But it remains for the counsel of the 
complainants to show "that an interest in a chattel which was not in the 
possession of the husband during the coverture, and which could not vest in 
the wife until after she was discovert, shall belong to the husband's 
executor. No authority has been or can be shown for such an extraordinary 
position. The authorities to the contrary will be found collected in Roper on 
husband and wife, 238, 239. The counsel has totally misapplied the law whereby 
a present gift to the wife during coverture enures to the husband. The reason 
of the law is, that during the coverture the husband and wife are one person, 
and all power over their joint property is in him; but this reason must be 
left out of view, or misunderstood, when it is insisted that the husband is 
entitled to an interest in a chattel not given unless the wife survive, and 
not to vest until the identity of person has ceased, and the wife has become, 
by survivorship, a distinct person in law as in fact, and when the personal 
rights of the husband are dead with them.

The right of the complainants to reverse the decree must, therefore, depend on 
their claim under the will of Ambrose Knox. The devise and bequest of the 
property, real and personal, lands, slaves, stock and furniture, is to (235) 
the husband and wife during their natural lives, and to the longest liver of 
them; and after the decease of the survivor, unto the heirs of their bodies, 
to be equally divided among them, to them and their heirs forever. Now it 
would seem, there could be but two constructions put on this testamentary 
disposition. Hither that the husband and wife should take the whole interest 
and estate in the real and personal property to which their representatives 
should succeed by law, or that they should take a life estate only, and the 
heirs of their body should take a contingent estate at their death. The 
complainants rejecting both these, ask for a third interpretation, whereby the 
husband and wife should take an estate for life only, and a vested remainder 
should be in the children of the husband and wife living at the making of the 
will or at the death of the testator, and that the children unborn should have 
vested remainders as they should come in esse.

To adopt this last construction would be to make, not to interpret the will. 
The testator hath said, "after their decease I do give all and singular the 
property, both real and personal, unto the heirs of their bodies." Now waiving 
the consideration, how these persons are to take, whether by descent or 
purchase, it would seem impossible to suppose that any other than heirs are to 
take, unless the testator has given some other description to control the 
meaning of "heirs of the body." He has said it is to be divided among them, 
and to be to them and their heirs forever. Do either of these phrases control 
the meaning? It has been said "divided" does; for that heirs are, by the 
common law, a series, and take consecutively and never distributively; and 
that, therefore, the division which is directed cannot be made among them, but 
must be among children who may take distributively. This reason would be 
unanswerable at common law; but this will was not made at common law, but 
under statutes that enable all persons in equal degree, for instance 
all "children," to take as heirs. So that heirs are not with us a (236) series 
only, but also a series of classes; wherefore heirs now do not take 
successively only, but distributively, as tenants in common; and the 
word "divided" applies to children and to heirs with equal fitness and 
propriety. It is said, however, that words of limitation are superadded, and 
therefore heirs of the body mean children. Whatever weight these words of 
limitation will have upon an inquiry whether they take as purchasers or in 
succession, they cannot aid us in ascertaining who are to take, children or 
heirs of the body. There are then no words designating children to take any 
interest in the real and personal estate. Whether heirs of the body ex vi 
termini ever mean children, when personal property is given to a parent, and 
remainder in purchase to the heirs of the body, and whether the words shall 
have the meaning in this testamentary disposition, will be more properly 
discussed in the course of the argument.

It is denied on the part of the defendants, that the children as such of John 
and Parthenia took a remainder in fee in the lands, and an absolute property 
in the chattels, consequent on the interest for life given to the wife as 
survivor; and it is insisted, that supposing the words "heirs of their body" 
to be words Of purchase, that at common law the person who claimed as 
purchaser must survive both and be the heir of both John and Parthenia.

It is decided in Frogmorton v. Wharrey (3 Wilson, 125, 144), on a surrender of 
copyhold from A to B whom he intended to marry, for life, and to the heirs of 
their bodies &c., that the heirs of the body take by purchase, and on the wife 
dying in the life of her husband, her son could not take in remainder by 
purchase, as not being heir of both. See Roe v. Quartley et al. (1 Term. 630, 
S. P.)

Archer's case is an express authority, that in a limitation to one for life, 
with a contingent remainder to the heir of his body, that the heir apparent 
has no interest, but that the heir proper of the tenant for life, that is, one 
who survives him and is entitled to succeed to his inheri-(237) tance, is the 
person designated to take the estate by purchase. Stith's heirs v. Barnes (4 
N. C., 484), is a decision of this Court to the same point.

These authorities are conclusive as to the real property, and these would 
appear to be decisive of the whole case, for the question is one of intention; 
who are the persons to take in remainder? As to the lands, upon authority the 
persons are certain, the heirs of the hushand and wife. Doubtless it was the 
meaning of the testator, that the individuals who were to take the lands, 
should take the personaltyv also, he intended the lands and chattels to go 
over on the same event to the same persons. It is a rule of construction, that 
a gift of a chattel to one and the heirs of his body, which would be a free 
tail of real estate shall vest the chattel in the first taker absolutely; but 
supposing the intent manifested that the heirs of the body shall take as 
purchasers, there is no rule of law prohibiting them to take. As if the 
testator in so many words should devise real estate and a personal chattel to 
A for life, remainder in purchase to such persons as at the death of A should 
be the heir at law of A, to such person and his heirs forever. If it be 
conceded that the devise did not make A tenant in tail of the real estate, but 
that his heir at law took as a purchaser, is there any reason why the personal 
chattel should not, on the decease of A the tenant for life, go over to the 
heir at law of A with the real estate? Certainly the rule of construction does 
not apply, for the devise of the real property does not create an estate tail, 
and therefore the bequest of the chattel shall not create an absolute property 
in A. It follows, therefore, if the "heirs of the body" of the husband and 
wife, upon the authorities cited, take the real estate as purchasers on the 
decease of the wife who survived, and that the children as such of the husband 
and wife did not take a vested remainder in the real estate, that the 
same "heirs of the body" shall, on the decease of the wife, take the 
personalty as purchasers, and that the children shall not take in the per-
(288) sonalty, a vested remaider, because by the will of the testator the 
realty and personalty, on the decease of the surviving donee for life, shall 
go to the heirs of the body of the husband and wife. The rule of construction 
will be found laid down in Butler's Fearne, 490, supported and illustrated by 
many cases, and in 2 Roper on Legacies, 393. And although the exceptions to 
the rule are many on the particular wording of bequests, where explanatory 
words have been added, importing that the testator meant issue or children, in 
which it has been held that the issue or children should take vested interests 
as they came in esse; yet these cases will not avail the complainants in their 
claim of the personalty, because the testator, by giving the personalty, with 
the lands, has shown he used the word "heirs" in a technical sense, to denote 
persons who would succerd to a joint fee of husband and wife, to take both the 
lands and chattels after the decease of the donees for life by purchase; and 
there is no maxim in law to hinder these persons, the "heirs of the husband 
and wife," to take according to the intent of the testator to the exclusion of 
the executor or assignee of a child dying in the life time of the mother. If 
the testator meant that the grandchildren of John and Parthenia Wyatt, 
surviving them both and being the heirs of their real estate, should take the 
chattels mentioned in the will in exclusion of the executor or assigneee of a 
child of John and Parthenia, who might die in the life time of one of his 
parents, the intent is a just and lawful one, and must prevail. He did so 
intend, for it is to their "heirs" that he does give both the lands and 
chattels.

But the defendants deny that the heirs of the survivor of the husband and wife 
took a distinct estate by purchase, and affirm that the words "heirs of their 
bodies lawfully begotten, to be equally divided among them, to them and their 
heirs forever," are words of limitation, and import no more than that the 
heirs of the husband and wife (239) were to succeed to the estate after their 
decease, as tenants in common.

The rule in Shelly's case is fairly cited by the counsel of the complainants 
from Hargrove's Tract, and the observations of Hargrave show the meaning and 
application of the rule. The sense of the rule is expressed with great 
precision and accuracy by Chancellor Thurlow in Jones v. Morgan (2 Bro. C. C., 
206). "It is not," says the Chancellor, "a question whether the ancestor 
should take for life only, for the testator, in most of the cases, means the 
first taker, a life estate only; but the true inquiry is, whether the heir 
shall take in the character of heir, for if so he must take in the quality of 
heir; and again, if the estate is to go to every person who can take as heir 
to the first taker, the word heir must be in limitation, and all heirs taking 
must be in by descent; as Hargrave expresses it, if the ancestor be the 
terminus, and the whole line of heirs (in tail or in fee) be to take after 
him, they must take by succession.

It is said that the whole line of heirs are not to succeed by the will of 
Knox; because words heirs of the body are not technical words by the laws of 
this state. It is insisted for the appellees, that the words "heirs" are not 
less words of art since than they were before the abolition of entails, 
although the words "of the body" do not, as formerly, control their meaning 
and confine the descent to lineal heirs. The word "heirs" retains its 
technical sense although the words "of the body" have lost their significance. 
The case of Jones v. Spaight, 4 N. C., 544, cited by the plaintiff's counsel 
to prove that "heirs of the body" is not a technical phrase, decides only that 
a limitation of an estate to one of his heirs, and to another if the first 
taker should die without leaving heirs, shall not convert the fee into an 
estate tail at common law, but shall mean a dying without issue living at tho 
death of the first taker, and that it shall be good as an executory devise; it 
decides nothing as to the meaning of heirs of the body. (240) But as to the 
effect of the word "leaving," the Judge, in delivering the opinion of the 
Court, however, expressly notices the idea advanced by one of the counsel in 
arguing that case, that the words should create an estate tail at common law 
for an instant which by the statute would be converted into a fee, for the 
purpose of stating that the words "heirs of the body" create a fee as heirs do 
at common law; and that the case is therefore an authority that heirs of the 
body are technical words, and mean neither more or less than heirs; and we 
suppose if there is no decision, that a limitation by a deed to A and the 
heirs of his body begotten, would give a fee simple to A, and none but words 
of art can operate in a deed. It is said by the counsel that one is a lawful 
and the other an unlawful intent of the testator. We profess not to understand 
this; the testator might lawfully give by purchase or succession, and the 
whole controversy is, which of the two meanings shall be put on the 
testamentary disposition. If by unlawful intent, it meant that the testator 
could not make an entail by will, the answer is, that it is true that he could 
not; but the heirs shall not take by purchase, nor shall the devise altogether 
fail because the words at common law would have created an entail, but the 
same words shall, since 1784, by legal intendment, create an entail in fee 
simple. It is said an usufruct is given to the tenants for life to their use, 
&c., and for life and no longer, and that this shows the testator meant the 
heirs should take as purchasers. It is settled on authority beyond dispute 
that a devise of the use of realty or personalty and of the thing itself; and 
again, that a devise to A and his heirs, and to A for life and no longer, 
remainder to his heirs, are identical in meaning, and differ in words 
only. "After their decease" is relied on to show a purchase was meant, it is 
not very easy to discover wherefore, as the words simply nothing more than 
that the succession or purchase shall begin after the decease of the survivor. 
(241) It is said that the words "divided amongst them," shows the testator 
intended the heirs should take as tenants in common and not in succession, and 
English cases from Vesey Jun. and Ambler are cited to show that these words 
would make the heirs take as purchasers, because they could not succeed as 
tenants in common. But it has been already shown, that because primogeniture 
is abolished in this state, and lands descend to heirs in common by statute, 
that these cases fail in their application.

The great question then in this case is whether the superaddition of words of 
inheritance upon the limitation to "heirs of the body," shows that the heirs 
of the body were persons designated who were to take estates in fee simple. 
Independent of all cases on the subject, as it has been shown that heirs of 
the body mean in our law heirs, it is strange, upon principle, that an estate 
to A and his heirs and to their heirs, should mean aught else but a 
succession; but let it be examined on authority. An estate to A and his heirs, 
or heirs of his body, is prima facie in a will an estate in fee to A; and the 
onus is on those who claim against him to show that he has less than a fee. 
For this purpose the complainant's counsel has first cited Doe V. Perrin (3 
Term, 484), where the devise is in remainder to the children of A, and their 
heirs forever. Children is not a word of limitation, but of purchase.

The next case cited is that of Cheek v. Day. In that the remainder is to the 
next heir male of A, in the singular number, and his heirs. Heir in the 
singular number is not a word of limitation, but a word of purchase. (See Co. 
Lit., 7 b.)

Archer's case is cited from 1 Rep. 55, and is a devise to Robert for life, and 
to the next heir male of Robert and his heirs. Again, heir is in the singular 
number, and therefore not a word of limitation but purchase.

2 Burr., 1110, Doe v. Laming, is greatly relied on; that was a devise of 
gavelkind to A and the heirs of her body, female as well as male, and their 
heirs. By (242) the custom of gavelkind females could not inherit; it was 
therefore held, that heirs was not used in a technical sense, and as the 
females could not take in succession, they must therefore take by purchase to 
give effect to the intent of the testator. It was in that case said by the 
Chief Justice, that the reasoning as to the heir in the singular number at 
common law, applied to the heirs in gavelkind in the plural number; but with 
great submisson, this dictum does not seem well founded, as heir is properly a 
word of purchase by common law and by custom, whereas heirs is a word of 
limitation in both, although it means in one that the eldest son and all the 
daughters shall succeed at law, and all the sons shall succeed by custom in 
lineal descent. It would seem, therefore, that an estate to A and his heirs 
and to their heirs by the custom, as it included the whole inheritable blood 
of A, should create a succession and not a purchase in the heirs of A. The 
remark of the Chief Justice was not necessary to the decision, as the case 
turned on the word female.

1 East, 264, is also cited; it is a devise to A for life and successively to 
such son or sons. Son has been always a word of purchase. 11 East, 668. To 
daughter for life and her heirs of her body as tenants in common, and if such 
issue should die before twenty-one, &c. Heirs at common law could not take in 
common: and this with issue, which is a word in purchase, controls heirs of 
the body. In the present case, heirs do take in common, and the word issue is 
not used. The case from 11 East cannot be reconciled with Doe v. Applen (4 
Term 82).

Jacobs v. Omeott (4 Bro C. C., 542). This is a bequest of personalty to A for 
her life, and from and immediately after her decease to the heirs of her body, 
to be equally divided between them share and share alike, and in default of 
issue over. This is of personalty and a bequest over. It would not have 
created an estate in tail in real estate because of the tenancy in common, and 
there was a bequest over in default of issue. There is in Jarvis (243) v. 
Wyatt, real estate, which renders the phrase of heirs technical, and what has 
been often repeated, the heirs by our act of assembly, take share and share 
alike by implication of law, and there is no mention of issue to limit the 
expression of heirs.

Hodgeson v. Bussey (2 Atk., 89), is a bequest of personalty to heirs of the 
body, their executors, &c. It was impossible to understand the testator to use 
heirs in a technical sense. 2 Vessey, 238, is cited to show, that in bequests 
of chattels, where heirs of the body by explanatory words are taken to mean 
children or issue, that Courts have labored to make them take vested estates 
as purchasers when in esse, or when they come in esse, instead of waiting the 
death of the first taker to become properly heirs of the body; which is not 
denied where personalty is the sole subject of bequest, and when it is 
ascertained that heirs of the body, by explanatory words, do mean children 
which is, however, the matter in controversy.

The counsel for the complainants did not cite the cases of Walker v. Snow and 
Lisle v. Gray, on the argument as to the effect of superadded words; but as we 
cannot reply, it may be well to notice in transitu that they are devises to 
the first, second, third son, &c., and so to the heirs of the body of the 
tenant for life and the heirs of their bodies in succession, &c., and so 
referring to third son and, meaning fourth, fifth, sixth sons, &c., in tail, 
sons being a word of purchase. Luddington v. Kime, Backhouse v. Wills, Law v. 
Davies, are limitations to issue and their heirs, issue being a word of 
purchase. These cases arc cited in Mr. Fearne's Essay, and commented on.

All these cases are affirmative, and show that if the limitation be to a 
person known or unknown, by proper terms of purchase, as heir in the singular 
number, heir female in gavelkind, issue, sons, &c., with superadded words of 
limitation, that the estate shall vest in the persona designata by purchase.

Negative authorities of the highest character abounds (244) to show, that if 
proper terms of limitation be used, and words of inheritance superadded, that 
the estate shall not vest by purchase, but shall, descend in succession.

Shelly's case (1 Co., 93), is an express authority; limitation to the heirs of 
the body in the plural and to the heirs of their bodies, an estate tail in the 
first taker.

Minshull v. Minshull (1 Atk., 412). First heirs male of the body and the heirs 
male of the body; distinction taken between singular and plural, and between 
this and Archer's case.

Wright v. Pearson. To T. R. for life, remainder to the heirs male of T. R. and 
their heirs; T. R. tenant in tail.

Legate v. Sewell (1 P. Wms. 187), and Goodright v. Puller (2 Ld. Raym., 1437, 
S. P.). These cases are collected by Fearne; and in page 183, of Butler's 
edition, it is remarked by the author of the essay, that the words heirs and 
heirs of the body in the plural, are sometimes abridged by words altering the 
descent as to A and the heirs of his body and the heirs male of such heirs, 
but never enlarged; and he cautions his readers not to confound these with the 
cases where words in tail have words in fee superadded, in which case the 
superadded words are surplusage. And Butler, in note to Fearne 203, says, Mr. 
Fearne's doctrine has been confirmed in Webb v. Puckey (5 Term 299), to Which 
we refer. King v. Burchell (Ambler 379), is a very strong case for defendants. 
Williams and wife v. Holly (4 N. C., 286), is entitled to great consideration 
as a decision of this Court; the devise was "to my daughter and her husband 
during each of their lifetime and no longer, if dying without any lawful heirs 
begotten of their bodies; and if any lawful heir, to that and to its heirs 
forever; otherwise to my right heirs." This was before 1784, and the question 
was whether there was an estate tail in the husband and wife, or a life estate 
in husband and wife only, and an estate tail in contingency in their heir. The 
Court held, because of the words of inheritance that followed the life estate 
of the husband and wife, that (245) they took an estate tail, which was 
converted to a fee by the act of 1784.

On the whole it is certain, on authority, that words of inheritance superadded 
to heirs in the plural, number, do not enable the heirs to take as purchasers; 
and there is nothing to distinguish the present case from that of Shelly, 
except the words "divided among them," which make the heirs tenants in common; 
and as this is the course of descent according to the statutes, it follows 
that they cannot have any effect in creating a purchase on the maxim of 
construction, that impressio earum quoe tacite insunt nihil operatur.

Gaston, in reply.—A gift to the wife of a personal chattel, is to all intents 
and purposes a gift to the husband, and therefore supposing the estate in the 
personalty in the husband and wife, yet as the husband would then be the 
absolute on her, his son William Wyatt, as his distributee, would have an 
interest in the personal chattels, which passed by his deed to complainants. 
This is met by saying that here is a gift to husband and wife jointly, with 
remainder to the survivor. It is not so; a husband and wife cannot have a 
joint estate in a chattel, for a gift of a chattel to husband and wife vests 
solely in the husband.

2dly. "The heirs of the body" in the devise and bequest do mean children. The 
case of Doe, lessee of Long, v. Laming, before cited, has not been answered, 
and is unanswerable on this point of the case. See the opinion of Lord 
Mansfield, 2 Burr., 1106, 1110, and per Justice Wilmot, 1112. "Heirs of the 
body" are not in all cases and under all circumstances words of limitation; 
the true principle that must govern all cases of this kind is the intention of 
the testator, provided it be not inconsistent with the rules of law. If they 
do mean children the remainder vests in those living and in others as they are 
born.

3 Trent, Rep., 484, before cited, and 5 Mass. Rep., (346) 537, as to the real 
estate, and so as to the personal property, 4 Bro. C. C. 542. 2 Ves. 238.

These cases are distinguishable from that in 3 Wilson, 125. These are cases in 
last wills where the intent of the testator shall prevail, if not inconsistent 
with the rules of law. The case at bar is also a will, and the case relied on 
by the appellee's counsel from 3 Wilson, is on the construction of a 
conveyance inter vivos, where the words must be construed with technical 
strictness.

3dly. As to the rule in Shelly' s case; the premises are wanting for the 
application of the rule; the words heirs of the body are qualified by new 
words of limitation consequent to and engrafted on them. Thurlow's opinion is 
the same as Hargrove's. The case of Jones v. Morgan turned on the want of the 
superadded words. Hence Thurlow's significant remark to Mansfield, who cited 
Lowe v. Davies for plaintiffs, "I did not hear you state my words of 
limitation afterwards;" and a like remark of Kenyon to Lens, Sergt., on citing 
the case of Jones v. Morgan in Goodtitle v. Herring (1 East 270), "I argued 
the case; there were no superadded words of limitation to the heirs male in 
that case." And again in delivering his opinion, "I well remember the case of 
Jones v. Morgan; there were no words of limitation added to the devise to the 
heirs male, which has always been holden to be of great weight in cases of 
this sort." Shelly's case (1 Rep. 93), was cited for the appellees; the words 
in that case are, "to the heirs male and to their heirs male;" there is no 
inconsistency, the superaddition is mere surplusage. Wright v. Pearson 
(Ambler, 358), cited in Fearne's Essay, 126, is relied on for the appellees; 
Fearne states the Lord Keeper Henley as deciding it on the intention of the 
testator in that particular will, as holding it immaterial whether the word 
heir was in the singular or plural number. Legate v. Sewell (1 P. Wms. 87), is 
a limitation of heirs male on heirs male, and tberefore is merely surplusage; 
and note the opinion of Justice Tracy (who differs from a majority of the 
(247) Court), that Archer's case was not decided on the word "heir," which 
being nomen collectivum would have created a fee as the word "heirs," but that 
the heir in that case took by purchase because of the limitation over to her 
heirs. Goodright v. Pullen (2 Ld. Raym., 1437). The subsequent words of 
limitation were doubtful and uncertain in their application; Fortescue thought 
they might refer to Nicholas. Williams v. Holley (4 N. C., 286). The devise 
was before 1784, when entails were in force in this state. It is perfectly 
clear, that heir when first used means heir of the body, and when subsequently 
used must have the same sense; so the whole is to the tenants for life, 
remainder to their lineal descendants, and so within the terms of Shelly's 
case. The case of Doe v. Laming is an authority for every point made by the 
appellants; 1st. It decides that heirs of the body, &c., are to be understood 
as words of purchase if the testator so intends. 2dly. Anne having died before 
the testator, it decides that her children took a vested estate, and that 
their remainder was not contingent on the life estate of their mother, and 
that they need not answer the description of heirs of her body. Thus these 
words heirs of the body may mean children in devises of real estate; they 
ordinarily do in personal property. (4 Bro C. C., 542. 2 Roper on Legacies, 
402.) The reason for interpreting words "heirs of the body" to mean children 
(since 1784 whon entails were done away) in the devises of lands, is as strong 
as in bequests of personalty in England.

In conclusion: One of three meanings must be attributed to the testator. 
First, a life estate to Wyatt and wife, remainder in tail to their issue, if 
this meaning be imputed, the words "equally to be divided" and the 
superaddition "to them and their heirs," must be rejected; it must be supposed 
that the testator intended to create an estate not allowed by law, and to 
create it in personalty as well as in lands. The whole estate will be given to 
(248) the husband and wife for whom the testator meant a usufruct only, and 
nothing will pass to the heirs of the body for whom he meant an absolute 
ownership; and thus the whole scheme of the devise will be destroyed as 
effectually as if you expunge every word from the will except the devise to 
Wyatt and wife.

Secondly, a life estate to Wyatt and wife, with a contingent remainder in fee 
to such persons as at the death of the survivor of husband and wife, might be 
the heirs of their bodies. This is to suppose "heirs of the body" to be used 
in a strict technical sense, and to mean heirs in tail. The words "equally to 
be divided" must be rejected, as equality of division was established in fee 
simple estates only (1 N. C., 402); personalty as well as realty will be 
entailed. It supposes that the testator did not mean his bounty for persons in 
existence and known to him, but for persons unknown to him, who were to come 
into existence, and whose whole merits with him were that they would stand in 
a certain legal relation to the tenants for life; the whole property would be 
in abeyance for the lives of Wyatt and wife.

Thirdly, the property was intended for Wyatt and wife for their lives only, 
remainder to their children absolutely; the children of Wyatt and wife were to 
have the whole estate and property, subject to the life estates of their 
father and mother. This is perfectly consistent with every expression, 
explains and reconciles every term, is consistent with the ordinary motives of 
human action, and is adapted to the nature of the property, produces no legal 
inconvenience, and is forbidden by no legal maxim.

Taylor, Chief Justice.—That the testator intended John Wyatt and his wife to 
have no more than the enjoyment of the subject devised, during their lives and 
that of the longest liver, seems evident from the terms he uses in the will. 
He "lends the use and occupation" of the plantation to them "during their 
natural lives, and to the (249) longest liver," and he "leaves them the 
chattel property during their lives as aforesaid;" thus showing his wish that 
they should be restrained from the power of disposing of the land, so as to 
defeat the ulterior devise to their heirs. He then provides that after their 
decease, all the property thus given shall go to the heirs of their bodies 
lawfully begotten, to be equally divided among them and their heirs forever.

It is agreed on the part of the defendants, that whatever the testator's 
intent might have been, yet the legal operation of the devise was to give an 
estate for life to John Wyatt and his wife, and an immediate remainder to 
their heirs, and that in such a case the rule in Shelly's case applies, and 
vests in the ancestors an estate in fee simple.

I think it evident that the words "heirs of their bodies," as used in this 
will, were designed to secure the estate in the first place to the descendants 
of John and Parthenia, and to make their issue the stock or root of the future 
succession, since if they had both died without leaving such issue, it would 
have contravened the intent of the testator to suffer the property to devolve 
on their collateral heirs. Upon the death of the devisees it would have vested 
in their lineal descendants as tenants in common, but the design of the will 
having taken effect, it would be an absolute estate in such children or 
grandchildren, descendible to their heirs general.

According to the authorities, "heirs of the body" have been held to be words 
of purchase, when the testator hath superadded fresh limitations, and grafted 
other words of inheritance upon the heirs to whom he gives the estate; thereby 
showing that those heirs were meant by the testator to be the stock of a new 
descent. Where the heirs are thus made ancestors, it is evident that the 
terms '"heirs of the body" are merely descriptive of the persons intended to 
take, and import such sons and daughters of the tenant for life as shall also 
be heirs of his body. This exception to the rule in Shelly's case is well 
established by the (250) cases referred to, particularly Archer's case, and 
Lisle v. Gray, and Lowe v. Davies.

Although it appears plain to my apprehension that the heirs take as 
purchasers, yet I think it unnecessary to say much more on this point, because 
it can make no difference in the decision of the cause; since in neither case 
could William Wyatt become entitled to any thing during the life-time of his 
parents.

There are not on the face of the will any sufficient indications that the 
testator meant to use the word "heirs" in any other than its technical sense, 
that is this, those who should answer the description upon the death of the 
ancestor, until which event it must be unknown who would be his heirs. On the 
contrary, the will devises it to the heirs after the decease of the father and 
mother, and it is consequently a contingent remainder to those who should be 
heirs of the body on the death of the survivor. As the real and personal 
estate are disposed of by the same words, the construction must be the same in 
both, and no part of either vested in William Wyatt. The husband and wife had 
a joint estate for life in both, and upon the death of either, the survivor 
became entitled for life, nor does it seem to me that it was such an interest 
in the wife as the husband might have assigned or released, so as to destroy 
the right of survivorship. (Shepherd's Touch., 344. Cro. Car., 222. 1 Salk., 
326. Cro. Jac., 570.) I am of opinion that William Wyatt having died before 
his surviving parent, took nothing in either real or personal property.

Henderson, Judge.—Where the superadded words equally to be divided between 
them stricken out, and the case decided according to the laws of England; 
there would be no doubt but that the wife who survived her husband would take 
an estate in special tail; that the estate created by the devise should stand 
thus, an estate to husband and wife during the coverture with a contingent 
remainder in special tail to the survivor; for the heirs of the body (251) 
being called to the succession in the character of heirs, must take in the 
quality of heirs, which could not be effected without according to the 
ancestor an estate descendable to the heirs of her body, and this, regardless 
of the intent of the devisor, for the question is not what he intended to do, 
but what he has done; he has called to the succession the heirs of her body 
after giving to her a life estate; and they claiming in their character of 
heirs, the ancestor must have an estate of inheritance herself, for the heirs 
as heirs can take only that which was in the ancestor. But since abolition of 
estates tail, heirs of the body can no longer take in that character, and 
therefore cannot take in the quality of heirs, in their proper sense they can 
no longer be considered as words of limitation or expansion; they must 
therefore be understood as words of purchase, when we are ascertaining in what 
character they are called to the succession, and in deciding on the question 
whether the ancestor took an estate of inheritance, or a bare estate for his 
life only. It is admitted, that if an estate be granted to A and to the heirs 
of his body, that A has a fee simple, not that it is converted into a fee 
simple by the act of 1784, it was not otherwise for a moment. The legislature 
declared by that act, that all such limitations thereafter made should create 
a fee simple descendable to the heirs collateral as well as lineal. We cannot, 
therefore, by construction, turn a life estate into an estate tail, and then 
give it up to the operation of the act of 1784, and thereby entirely defeat 
the intention of the devisor; for in such case the collateral heirs would 
succeed on failure of lineal heirs. Heirs general include tho whole 
inheritable blood. By our law the latter description have lost their 
character; our law knows of no such body of heirs taking exclusively. But the 
words have not lost their meaning, as a designatio personarum; they point to 
the same persons that they did before the act of 1784. When the person 
designated comes to claim, and not before, the question then arises, in what 
char-(252) acter does he claim? in order to ascertain in what quality he 
should take. If, therefore, an estate for life be given to A, remainder to the 
heirs of his body, and a collateral heir, a brother, should come to claim, the 
question in what character he claims would never arise; the previous question 
would dispose of his claim, that he is not, the person designated; he could 
therefore claim in neither character, as well might it be said that the two 
estates unite where the limitation is to the first son; first, for the word 
son is not a word of limitation but of purchase, because it does not include 
tho whole inheritable blood of either species of estates known to the laws of 
England. So here, heirs of the body are not words of limitation but of 
purchase, when we are ascertaining this previous question, for the very same 
reasons; they do not include the whole inheritable blood on whom any estate of 
inheritance is descendable.

The rule, therefore, is, when by the words the same persons are called to the 
succession in the same manner as when called by the law, they claim in the 
character of heirs, and must take in the quality of heirs, and when not, they 
take as purchasers.

I am glad that we are relieved from deciding on the meaning of the words heirs 
of the body, or heirs general when applied to personal property. The question 
in the abstract does not appear to be settled in England. The opinion 
expressed by Lord Alvanley in Ves. Jun., I think is the better one, that they 
mean heirs quoad the property. It is true that many cases may be found where 
it is said that they mean children, issue, descendants, next of kin, and the 
like. But this meaning is given to them in reference to the particular case 
then under consideration, as where the contest is between the eldest son and 
heir at law and the other children. There it was said they mean children to 
include tho whole, for they are heirs quoad the property; also where they were 
construed children to prevent the operation of the maxim nemo est hoeres 
viventis, and the like. There is one case decided (258) by Sir Thomas Clarke, 
Master of the Rolls, in which it was adjudged that they meant children, in 
exclusion of grandchildren; but I do not find that this case is followed; it 
is not so much as noticod by Lord Alvanley, and it appears to me to be a 
strange decision; but there was a reason given for it, but a very poor one. 
The estate was devised to the heirs of the body of A, and to the children of 
B. Sir Thomas Clarke took held of the word children of B to exclude the 
grandchildren of A. If necessity requited it, I think he ought to have 
reserved it. But in this case we are relieved from the consideration of the 
question, for the devise certainly intended the property to be kept together, 
and to go over together; and there is nothing improper to use a word proper to 
designate a person in regard to real property, to point out a purchaser of 
personal property. It is true that the devisor could not make it descend as 
real property; but because we cannot effectuate his intent in toto, it is no 
reason that we shall not do it in part; and by these words we are carried to 
persons to take by a certain designation, for the statute of 1784 has not 
destroyed the meaning of the words heirs of the body; they still designate 
those lineal descendants on whom an inheritance devolves so far as regards 
designating a purchaser. But it was argued, why not take its meaning with 
respect to personal property as regards both species, as they are to be kept 
together, and carry both estates to the heir quoad the personal estate? The 
answer is, the words heirs of the body are more appropriate to real estate; it 
is there technical, in the other it is more uncertain, and we are left in some 
measure to conjecture. Besides the real estate is the most worthy, and if both 
estates are to go together, its word of designation shall be preferred.

I therefore think that the complainant's mortgage had nothing in the property 
when the mortgage was made, and that the other children, not claiming under 
him, will not be affected by his transfer. The bill must there-(254)fore be 
dismissed with costs.

Hall, Judge.—I think the interest intended by the testator for the heirs of 
the body of John and Parthenia Wyatt is contingent, and does not vest in them 
until the death of their mother, who survived their father, and that then they 
take as purchasers.

I think the words heirs of their bodies lawfully begotten, are a description 
of the persons intended to take; because the words equally to be divided 
between them, to them and, their heirs forever, give them a fee simple, and if 
they have a fee simple, they do not take it because they are the heirs general 
of their father and mother, but because the testator by using those latter 
words has given it to them. If then they have a fee simple by those latter 
words, they take nothing by the words heirs of their bodies, &c., as used in a 
technical sense; the only office of those words must be, to ascertain, at Mrs. 
Wyatt's death, the persons who shall be entitled to take; before the happening 
of that event, it cannot be done, for neno est hoeres viventis.

We have been urged to consider the words heirs of the body, as issue or 
children, in order to let the property vest. But I cannot discover in the will 
any clause that justifies a departure from the words used by the testator; it 
is not likely that he intended that the children of John and Parthenia should 
have any control over the property before they got it into their possession. I 
therefore think that the real and personal property in question did not vest 
in William Wyatt during his life, and of course he conveyed nothing by the 
deed which he executed to the complainants. But there is another view of this 
case taken by my brother Henderson, to which I altogether subscribe, which 
leads to the same result; and that is, that the words heirs of the body gives 
an estate in fee by purchase, although there is an estate for life to the 
parent preceding it; (255) because heirs of the body are not heirs general, 
and our law, since estates tail are done away, recognize none as heirs except 
such as can inherit collaterally as well as lineally; and that, although where 
there is an estate for life to the parent remainder to his heirs, both estates 
unite in the parent under the operation of Shelly's case; yet there can be no 
such union where the remainder is to heirs of the body; our law knows of no 
such heirs, of course they are words of description, and those that take under 
them must take as purchasers. In England the case is otherwise, because heirs 
of the body are recognized as heirs, they can inherit as such.

I also think, for too reasons given by Judge Henderson, that the personal 
estate in this case is to be governed by the same rules of law as the real 
estate.

Cited, Leathers v. Gray, 96 N. C., 548; S. C., 101 N. C., 162. Questioned and 
held doubtful authority, Nichols & Gladden, 117 N. C., 497.

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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