Thompson v. Crump, 138 N.C. 32 (1904)

April 4, 1904 · Supreme Court of North Carolina
138 N.C. 32


(Filed April 4, 1904).

Wills — Rule in Shelley’s Case — Dower.

Where a will provided: “I bequeath to my son J. all my lands for and during his life, and after his death to his lawful heirs born of his wife”, the words “born of his wife” qualifying and explaining “his lawful heirs” coniine the remainder to the children of his wife and prevent the operation of the Rule in Shelley’s case and J. took only an estate for life in the lands and his widow is not entitled to dower therein.

Special PkocebdiNG by S. B. Thompson and others v. T. E. Crump, beard by Judge M. II. Justice at Chambees, on Nov. 2oth, 1904. ■

This is a special proceeding brought before tbe clerk of tbe Superior Court of Union County for tbe partition of certain lands. Tbe facts which present tbe particular question to be determined are not disputed and are as follows: J ames W. Thompson, deceased husband of T. E. Crump, one of tbe defendants in this action, by virtue of tbe will of bis father, L. B. Thompson, took and up to tbe time of bis death was possessed of two tracts of land consisting of 115 acres. Tbe item of tbe will; by which this land passed to J ames W. Thompson, is as follows “I give and bequeath unto my son, James W. Thompson all my lands which I now or *33may hereafter own for and during bis life and after bis death to bis lawful heirs, born of bis wife, and in case be shall have no such heirs to take the estate, in that case it is. my will and desire that it go to his full sister E. Bogan and children, and in case there be none of that class, then I allow it to go to James "W. Thompson’s half sister, O. E. Har-gett.” The petitioners and defendants in the special proceeding, with the exception of one Eedwine, who became the owner of a certain share by purchase, and T. E. Crump, widow, are the lawful children of James TV. Thompson. In answer to the petition for a sale and division of the 115 acre tract, which is the land mentioned in the will of L. B. Thompson, defendant, T. E. Crump alleges that she is entitled to dower therein. The clerk of the court, before whom the proceeding was commenced, ruled that she was not entitled to dower. The defendant appealed to His Honor, M. II. Justice, Judge, at Chambers, who affirmed the ruling of the clerk, and from his judgnlnet the defendant appeals to this court.

Redwine & Stack for the plaintiffs.

'Williams & Lemmond for the defendant.

Brown, J.,

after stating the facts: The application of the Buie in Shelley’s Case to the item of the will by virtue of which James W. Thompson took and remained in possession of the two tracts of land comprising 115 acres is the sole question presented for our determination. If the rule applies and James W. Thompson died seized in fee of the premises conveyed, then it is plain that T. E. Crump, his widow, would be entitled to dower in the land. But if there are superadcled words so limiting and qualifying the estate bequeathed to James W. Thompson as to make the rule inapplicable, then his “lawful heirs” by virtue of the will *34would take, by purchase, a contingent remainder in fee simple, thus destroying the widow’s right to dower.

There can be no doubt that the item of the will presented for our consideration does contain words of qualification which prevent the application of the Rule in Shelley’s Case. The words “born of bife wife” qualifying and explaining “his lawful heirs,” confine the remainder to the children of his wife and prevent the operation of the rule. The super-added words show that the devisor intended to make the words “lawful heirs” a designatio personarwn, that is they show an intention on his part to limit the remainder over to a j)articular class of heirs. This case falls plainly within the rule that, where a freehold is given to one person, remainder to the heirs of the body of that person and another, and such persons are capable of having a common heir of their bodies, the Rule in Shelley’s Case does not apply, and the heirs of their common bodies take by purchase a contingent remainder in fee simple, and the original taker receives merely an estate for life. Dawson v. Quinnerly, 118 N. C., at 188.

In holding that the interest of James W. Thompson was only an estate for life, with remainder over “to his lawful heirs, born of his wife,” we have adhered strictly to the view that the Rule in Shelley’s Case is a rule of law and not of construction, but, in so doing, we have also carried out what seems to us to be the plain intention of the devisor, whose will we are considering. It is our opinion that James "W. Thompson took only an estate for life in the 115 acres, and his widow is not entitled to dower therein.