Glover v. Glover, 224 N.C. 152 (1944)

March 22, 1944 · Supreme Court of North Carolina
224 N.C. 152


(Filed 22 March, 1944.)

Estates § 5: Deeds § 13b—

A conveyance to one for “his lifetime, and at his death to his heirs, if any, his heirs,” invokes the application of the rule in Shelley’s ease and vests a fee in the first taker. The use of the phrase “if any” does not prevent the application of the rule, since there is no limitation over.

Appeal by defendant from Dixon, Special Judge, at November Term, 1943, of JohNstoN.


This was a controversy without action, submitted on an agreed statement of facts, to determine tbe title to land, tbe subject of a contract to convey. From judgment that plaintiff’s deed would convey a good title, defendant appealed.

Wellons, Martin & Wellons for plaintiff.

Parker ■& Lee for defendant.

DeviN, J.

Plaintiff derived bis title to tbe described land under a deed conveying tbe land “to him bis lifetime, and at bis death to bis heirs, if any, bis heirs and assigns.” Tbe word “assigns” was stricken through with a pen. Apparently tbe repetition of tbe word heirs and tbe crossing out of tbe word assigns was occasioned by tbe use of a printed form in drawing tbe deed.

We think tbe word heirs used in tbe premises and habendum of plaintiff’s deed must be construed in its technical sense as indicating those who are to take in inheritable succession, rather than as meaning children or issue. Tbe intention of tbe grantor is to be ascertained from tbe language used in tbe deed, interpreted in accord with tbe well established rules of law' applicable thereto. Williamson v. Cox, 218 N. C., 177, 10 S. E. (2d), 662. Tbe conveyance is to tbe plaintiff for “bis lifetime,” •and in tbe same conveyance tbe remainder is to bis heirs general. This invoked tbe application of tbe rule in Shelley’s case, and vested tbe fee in tbe first taker. Martin v. Knowles, 195 N. C., 427, 142 S. E., 313; Benton v. Baucom, 192 N. C., 630, 135 S. E., 629. Tbe use of tbe phrase “if any,” following tbe word heirs may not be held to prevent tbe application of tbe rule, since there is no limitation over. This distinguishes this case from Puckett v. Morgan, 158 N. C., 344, 74 S. E., 15, and Jones v. Whichard, 163 N. C., 241, 79 S. E., 503, relied on by defendant.

We think tbe court below has ruled correctly, and tbe judgment on tbe facts agreed is