
    
      W. V. HARTMAN, Trustee in Bankruptcy for T. H. (SHACK) FLYNN, Bankrupt, v. T. H. (SHACK) FLYNN and Wife, MATTIE FLYNN, et al.
    (Filed 15 April, 1925.)
    1. Estates — Rule in Shelley’s Case.
    The rule in Shelley’s ease is now well established as a rule of property, as well is a rule of law, in the jurisdiction of our State, subject to change by statute.
    2. Same — Remainders—Homestead—Bankruptcy.
    A devise of land to the testator’s son, and then to his bodily heirs, by the application of the rule in Shelley's ease, gives to the son a fee-simple estate, and a further devise to his wife, should she survive him, does not affect the application of this rule; and when the son has become bankrupt, his trustee in bankruptcy may maintain his action to enter into possession of the lands and sell the same for the benefit of the creditors of the estate, subject to the contingent estate of the wife and the homestead of the bankrupt.
    Appeal by defendant, T. H. (Sback) Flynn, from a judgment of McElroy, J., at November Term, 1924, of Foksyth.
    Tbe plaintiff, Hartman, is tbe duly appointed trustee in bankruptcy of T. H. Flynn, wbo is tbe same person as Sback Flynn.
    Tbis action is to recover a tract of land from Sback Flynn, bankrupt, and Mattie Flynn, bis wife, for tbe use of tbe bankrupt estate.
    It further appears that, in order to adjudicate tbe rights of tbe children of Sback Flynn in tbis land, those now in esse, as well as those wbo may be hereafter born, were made parties.
    Tbe plaintiff’s right to recover is dependent on item 4 of tbe will of Thomas W. Flynn. Tbis item is as follows:
    “I give to my son, Sback, so long as be lives, and then to bis bodily heirs, tbe Randleman plantation, lying mostly on tbe east side of tbe road leading from tbe river out by H. M. Scott’s to tbe Old Richmond Road, two small strips lying on tbe west side of tbe road, one near H. M. Scott’s, and tbe other near Sid Butner’s, known as tbe Old Poplar Springs; tbis land to be valued at $1,600.00. But if be should die before bis wife, Mattie, she shall bold tbe same plantation as long as she remains single.”
    Tbe court rendered tbe following judgment:
    “Tbis cause coming on to be beard before bis Honor, P. A. McElroy, judge presiding at tbe November Term, 1924, of tbe Superior Court of Forsyth County, and being beard upon tbe pleadings and tbe agreed statement of facts, tbe court is of tbe opinion, and so bolds, that under tbe terms of tbe will of Thomas W. Flynn, which is attached to tbe complaint, and under item 4 thereof, tbe defendant, T. H. (Shack) Flynn, was devised a title in fee simple to the lands described in item 4 of the said will, subject only to an estate to Mattie Flynn, wife of T. H. (Shack) ’ Flynn, during her widowhood, in the event the said T. H. (Shack) Flynn dies during the lifetime of the said Mattie Flynn.
    “It is therefore decreed, ordered and adjudged that the plaintiff, W. Y. Hartman, trustee in bankruptcy of T. H. (Shack) Flynn, is the owner of and is entitled to the possession of the lands described in the fourth item of said will, he holding a fee-simple title thereto, subject only to the contingent interest of the said Mattie Flynn, as aforesaid, and subject to a homestead to T. H. (Shack) Flynn, as provided by law.
    “And it is further ordered that the defendant, T. H. (Shack) Flynn, and wife, Mattie Flynn, surrender possession of said lands described in the fourth item of said will immediately to the said W. Y. Hartman, trustee in bankruptcy of T. H. (Shack) Flynn, bankrupt, and that the said W. Y. Hartman, trustee, be put in possession thereof, subject to a homestead therein, as provided by law.
    “It is further ordered that the costs of this action be taxed against the defendant, T. H. (Shack) Flynn.”
    The defendant, Shack Flynn, contends that he was only a life tenant of the lands in controversy, while plaintiff contends that he was a tenant in fee, subject to the contingent life estate of Mattie Flynn, his wife, and that the plaintiff therefore is entitled to the said lands for the use of the bankrupt estate, subject to this contingent life estate of Mattie Flynn and the homestead rights of Shack Flynn.
    
      Manly, Hendren & Womble and Forrest G. Miles for plaintiff.
    
    
      T. ~W. Eallam for defendants.
    
   Varser, J.

It is conceded that, if the rule in Shelley’s case applies to this devise to Shack Flynn, the judgment of the trial court must be affirmed.

The rule in Shelley’s case is imbedded in the jurisprudence of North Carolina as a well-settled rule of property. Whatever may have been its status prior to that time, it was set at rest by Starnes v. Hill, 112 N. C., 1. At that time it was debated, in the minds of some, that the statute, now C. S., 1739, had the effect of abolishing this rule, but this is Uow no longer an open question.

We find a most interesting and learned discussion of this doctrine in Mordeeai’s Law Lectures, Vol. 1, 649 et seq. An elaborate discussion also appears in 24 R. C. L., 887. A complete American judicial history of this rule appears in the very elaborate treatise in 29 L. R. A. (N. S.), 963-1170, with a list of the North Carolina cases on pages 1165-1166.

In Hampton v. Griggs, 184 N. C., 13, it is said: “Whatever reasons, pro and con, may have been advanced originally in support of the wisdom or impolicy o£ following the rule in Shelley’s case, so far as the courts of North Carolina are concerned, this is no longer an open question.” “Much has been said in support of its adoption, and something in criticism; but, with us, it is a rule of property as well as a rule of law, and we must observe it wherever the facts call for its application. The Legislature alone may change it if it is thought to be unsuited to the needs of our day or to the industrial life of our times. It is one of the ancient landmarks which the fathers have' set in the law, as it relates to the subject of real property, and we should be slow to remove it.”

In this case the following prerequisites to the application of the rule in Shelley’s case are collated and announced:

“(1) There must be, in the.first instance, an estate of freehold in the ancestor or by the first taker; and (2) the ancestor must acquire this prior estate by, through, or in consequence of the same instrument which contains the limitation to his heirs; (3) the words ‘heirs’ or ‘heirs of the body’ must be used in the technical sense as importing a class of persons to take indefinitely in succession, from generation to generation, in the course marked out by the canons of descent; (4) the interest acquired by the ancestor and that limited to his heirs must be of the same character or quality- — -that is to say, both must be legal,’ or both must be equitable, else the two would not coalesce; and (5) the limitation to the heirs must be of an inheritance, in fee or in tail, and this must be made by way of remainder.”

In the first place, the defendant asserts the nonapplicability of the rule in Shelley’s case, because of the contingent life estate of Mattie Flynn, wife of Shack Flynn.

In Daniel v. Harrison, 175 N. C., 120, the identical question was decided, and the provision for Fannie A. Daw during her widowhood was held not to interfere with the application of the rule in Shelley’s case.

In Smith v. Smith, 173 N. C., 124, the same question was presented. In that case the devise was: “I loan to my son, D. L. Smith, two tracts of land (describing same), to have during his life, at his death to his bodily heirs and to his wife her lifetime or widowhood.”

The second intervening estate, during “her lifetime or widowhood,” did not prevent the application of the rule.

In Jones v. Whichard, 163 N. C., 243, the rule is stated thus: “When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without interposition of another estate, of an interest of the same legal or equitable quality to his heirs, or beirs of bis body, as a class of persons to take in succession, from generation to generation, tbe limitation to tbe beirs entitled tbe ancestor to tbe whole estate.”

In Nichols v. Gladden, 117 N. C., 497, tbe rule as given in 1 Coke, 104, is stated thus: “That when tbe ancestor, by any gift or conveyance, taketb an estate of freehold, and in tbe same gift or conveyance an estate is limited either mediately or immediately to bis beirs, in fee or in tail, tbe word ‘beirs’ is a word of limitation of tbe estate and not a word of purchase.”

We see that these statements are necessarily tbe same. Tbe words “either with and without tbe interposition of another estate” in tbe one «perform tbe same office as tbe words “either mediately or immediately” in tbe other. Ex vi ierminorum they include tbe contingent estate, durante viduitate, as provided in the instant case. Smith v. Smith, supra.

“Tbe interposition of a life estate in another does not interfere with tbe operation of tbe rule, so far as tbe beirs are concerned, when tbe estate comes to them they take by descent -and not by purchase, and tbe ancestor, or first taker, has full power of control over tbe property, and may sell or encumber as a full owner may, subject only to estate in remainder to tbe wife during her life or widowhood, and tbe rights incident to it.” Smith v. Smith, supra; Cotton v. Moseley, 159 N. C., 1; Edgerton v. Aycock, 123 N. C., 134; Kiser v. Kiser, 55 N. C., 28; Quick v. Quick, 21 N. J. L., 13.

We therefore conclude that tbe contingent estate of Mattie Elyn'n does not prevent tbe application of tbe rule in Shelley’s case.

It is further contended that tbe words “bodily beirs” are not tbe same as “beirs of tbe body.” This has been adjudicated with definiteness and certainty against defendant’s contention. Blake v. Shields, 172 N. C., 628.

In tbe instant case it is clear that tbe use of “bodily beirs” is not a descriptio personarum, but tbe use is in tbe technical sense, Revis v. Murphy, 172 N. C., 579; Jones v. Ragsdale, 141 N. C., 201; Daniel v. Harrison, supra.

In Bank v. Dortch, 186 N. C., 510, Hoke, J., afterwards Chief Justice, again reviews tbe authorities with a wealth of learning and clearness, and decides tbe same contention against what is now tbe defendant’s contention in tbe instant case.

In Walker v. Butner, 187 N. C., 535, this Court continues to reaffirm this well-established rule, and gives as a real present-day reason for its extended life by tbe courts, and by tbe sufferance of Legislature, that “it prevents tbe tying-up of real estate by making possible its transfer one generation earlier, and also subjecting it to tbe payment of tbe debts of tbe first taker.”

Tbe Court also says: “It is doubtless, for tbis reason, that tbe rule bas never been repealed in North Carolina.”

Accordingly, we are of opinion tbat tbe devise in tbe instant case comes clearly witbin tbe rule in Shelley’s case, and bad tbe effect to vest into Shack Flynn an estate in fee simple in tbe lands devised, subject to an estate in favor of Mattie Flynn, bis wife, contingent upon her survival of him and during her widowhood. Inasmuch as her rights, as well as tbe homestead rights of Shack Flynn, are fully protected, let tbe judgment of tbe trial court be

Affirmed.  