TUNNELL v. BERRY No. 842SC536.

326 S.E.2d 288 (1985)

Lucille B. TUNNELL, John M. Berry, Jr., Henry Clay Berry, Merlin S. Berry, Velma A. Berry, Landreth W. Berry, Kay Berry Young, Frances C. Barbour, Mrs. Edward W. Cahoon, Evelyn Ann Croley, Phillip S. Harris, Elizabeth C. La Voy, Nicholas D. Harris, Marietta C. Heobeat, Clary Weston, Wade Swindell, Ella S. Berry, Nell Grace Berry, Reuben W. Berry, Jr., William C. Berry, Leona Berry Lupton, Carlos Berry, Jr., Samuel G. Jones, Jr., William C. Jones, Mary Ruth Jones Scott, Charles A. Jones, Howard E. Jones, Thad Brown, Mary Anna Brown Wilkinson, John Kenneth Brown, Alexander B. Berry, III, Timothy B. Berry, Elva Anne Berry Yates, Hazel Berry Baker, Frances Berry Caviness, Susan Swindell Wenrich, Mark Edward Swindell, Dallas N. Berry, Sr., James F. Berry, Evelyn Berry Parry Ellis, Margaret T. Pittman, Shirley Berry Phillips, Richard Duane Berry, Charles Henry Hall, C. Timothy Smith, Eunice S. Darden, Nellie B. Outland, James E. Bridgman, Sandra B. Partin, Irene B. Lassiter, Harvey D. Williams, Jr., Michael V. Holton, Jack M. Holton, Wilbur Clay Holderby, Hildah Jones Murray, Z. Vance Jones, Jr., Georgia E. Harris, Jean Harris Potter, Dorothy Harris Ireland, Myra Harris Mayo, James T. Harris, Ruby Harris Williams, Dora Harris Clayton, Richard Berry Harris, Jr., Ella Louise Harris, Nancy J. Mussel, Betsy J. Nugent, Mike E. Jones, Jr., Polly Ann Berry Cutrell, Metrah Warren Williams, Clarence Spencer Holton, Jr., Mary Ann J. Beard, Lewis B. Jones, Virginia Jones Mc Kie, Joseph Swindell Credle, Melinda Credle Easton, Marjorie Ann Williams, Glenn W. Holderby, Hal Ford Holton, John B. Mc Gowan, Mary Katheryn Mc Gowan, Dorman J. Mc Gowan, James A. Mc Gowan, Jr., Linda Mc Gowan Mc Queen, Richard Berry, and Leslie Jones, Jr., Hilda J. Murray v. Mrs. Job BERRY, W. Gratz Spencer and Wife, Margaret M. Spencer, Morris Berry, Roy Cahoon, William Cliff Cahoon, Hiatt B. Cahoon and Wife, Norma Earle S. Cahoon, Richard Dicks, Charles Dicks, Dorthy Dicks Radcliffe, Millicent Harris Lupton, Myra H. Youngs, Bobby Berry, Alexander Berry Credle, George V. Credle, III, Charles Berry, Gui V. Harris, Mrs. James Barnes, Lee Williams, Fannie Cahoon Boomer, Metta Mc Gowan, David Mc Gowan, Scott Holton, Mrs. Atril Lilly, Mrs. Dorcus E. Clarke, Mrs. Jean Ross, Carolyn Jones, Selby Jones, Ruth Holton Dale, Cecil Ruben Harris, and Eastwood Hubert, and any other Per Stirpes Issue of John Berry.

Court of Appeals of North Carolina.
March 5, 1985.
Rodman, Rodman, Holscher & Francisco by Edward N. Rodman, Washington, and Davis & Davis by George Thomas Davis, Jr., Swanquarter, for plaintiffs-appellants.
Wilkinson & Vosburgh by James R. Vosburgh, Washington, for defendants-appellees.

ARNOLD, Judge.

The first issue presented by this appeal is whether the trial court erred by concluding that the words "brothers and sisters or their heirs" in the will of John Berry were words of limitation rather than words of purchase, and that as such they served only to preserve the ancestral shares of the "brothers and sisters."

Words of purchase in wills are those words which designate the persons to whom an estate in land is granted, while words of limitation are those which define the quantum of interest given and fixes the time for the commencement of the estate. The word "heirs" may be used as either a word of purchase or a word of limitation. Although the word "heirs" is primarily used as a word of limitation, when it is used to designate beneficiaries who are to take an estate it is a word of purchase. J. Grimes, 5B Thompson on Real Property § 2621 pp. 2-3, (1978 Replacement Volume). When a transfer is made to "A and his heirs" the words "and his heirs" are words of limitation and mean that "A" has an estate that is potentially infinite in duration or, put another way, an estate in fee simple. T. Bergin and P. Haskell, Preface To Estates in Land and Future Interest, p. 30 (1984). However, in a transfer to "A or his heirs" the words "or his heirs" are words of purchase which designate alternative takers to "A." Grimes, supra, § 2622 p. 11. Thus, the trial court erred in concluding that "brothers and sisters or their heirs" were words of limitation which served only to preserve the ancestral shares of the brothers and sisters.

Having determined that "brothers and sisters or their heirs" are words of purchase, the next question presented is what meaning should we ascribe to the word "heirs." The term "heirs" is generally interpreted to mean those persons who come within the intestate succession statute and who are living at the date of the testator's death. However, this general rule is subject to exceptions. See generally T. Bergin and P. Haskell, supra, pp. 230-232. Our Supreme Court recognized such an exception in Mercer v. Downs, 191 N.C. 203, 131 S.E. 575 (1926), where the testator left certain property to his wife for life with a remainder to the testator's "surviving children or their heirs." The court held that: "The language `our surviving children or their heirs' indicates that the death of the life tenant and not the death of the devisor was the time fixed for the ascertainment of the remaindermen." Id. at 206, 131 S.E. at 577. In Lawson v. Lawson, 267 N.C. 643, 645, 148 S.E.2d 546, 548 (1966), the Supreme Court further held that when interests were contingent, that only those persons "`who can answer the roll immediately upon the happening of the [contingency] acquire any estate in the properties granted.' (Citation omitted)." The position adopted in Lawson is a minority rule which has in some instances had as its effect the disinheritance of whole lines of a testator's intended takers. See T. Bergin and P. Haskell, supra, p. 131. While we feel that Lawson is in need of further review, nevertheless we are bound by it. Finally, in Hutchinson v. Lucas, 181 N.C. 53, 54-55, 106 S.E. 150, 151 (1921), the court stated that "when the holders of a contingent estate are specified and known they may assign and convey it and can make a deed which will conclude all claiming under them, ... yet `where the heirs, issue or children are so designated as to take by purchase under the terms of the will, there is no estoppel or rebuttal, as they do not take from their ancestor by descent, but directly from the devisor as purchasers.'"

Applying these principles to the case sub judice we conclude that the takers under the contingent devise to Job's brothers and sisters or their heirs were the heirs of Job's brothers and sisters who were alive when Job died without leaving any children. Since these takers were not ascertainable until Job died in 1979 without leaving any children, the 1941 quit claim deed by those persons who would have taken had Job died at that time was not effective to extinguish the rights of their descendants.

Finally, we must determine whether the 1941 quit claim deed served to estop those persons who executed it in 1941 and who were still alive when Job died in 1979. "In North Carolina, whether a quitclaim deed ... creates an estoppel depends upon its language, ... and there is substantial authority in this jurisdiction for the position that the principle of estoppel will apply when the deed shows that the grantor intended to convey and the grantee expected to acquire a particular estate.... (Citations omitted.)" Realty Co. v. Wysor, 272 N.C. 172, 178-79, 158 S.E.2d 7, 12 (1967). The 1941 quit claim deed evidenced an intent by the grantors to convey and an expectation that the grantee was going to receive certain interests. Thus, those persons who are the heirs of Job's brothers and sisters and who signed the 1941 deed are estopped from pursuing their claim to the property.

For the foregoing reasoning, the judgment of the trial court is reversed and the case is remanded for the entry of a judgment determining the ownership in the property in accordance with the guidelines set forth in this opinion.

Reversed and remanded.

WELLS and MARTIN, JJ., concur.


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