
    B. A. PRICE et al. v. G. O. GRIFFIN and wife.
    (Filed 21 April, 1909.)
    1. Deeds and Conveyances — interpretation—Words and Phrases— “Surviving Heirs” — Surplusage.
    Tlie word “surviving,” in a conveyance of land “to P. for life, •and at his death to his surviving heirs,” is surplusage, and cannot affect the legal interpretation of the words employed.
    2. Same — Rule in Shelley’s Case.
    A conveyance' of an estate “to P. for life, and at his death to his surviving heirs,” conveys the fee simple to the grantee, under the'rule in Shelley's case. (May v. Lewis, 132 N. C., 115, cited, approved and distinguished.)
    3. Deeds and Conveyances — Interpretation—Context—Estates— “Living Heirs” — Surplusage.
    In construing the meaning of words contained in a deed the court may examine the context of the deed; and for the purpose of. shedding light upon the value or extent of the estate described in the conveyance clause — in this case, “to P. for. life and at his death to the surviving heirs” — the warranty and covenant clause may be resorted to, when the language is applicable, as some evidence that the word “living,” thus used,, should be treated as surplusage.
    ActioN tried before Neal, J., upon, demurrer to complaint, at November Term, 1908, of WaKE. . .
    Demurrer sustained. Plaintiff appealed.
    Tbe pertinent facts are stated in tbe opinion.
    
      M. T. Dickerson and H. L. Stevens for plaintiffs.
    
      Isaac F. Dortch, F. A. Daniels and Aycock & Winston for defendants.
   Walker, J.

Tbis is an action for tbe partition of land. In March, 1819, Jesse Price, Sr., wbo was then tbe owner of tbe land in controversy, conveyed tbe same by deed to bis son, Jobn 0. Price, during tbe term of bis lifetime, and at bis death to bis surviving heirs, reserving to Jesse Price, Sr., tbe grantor, an estate for life in tbe land. Jesse Price, Sr., died in 1879, and John C. Price, on 15 January, 1883, conveyed tbe land by deed to W. P. Price in fee simple. John C. Price died on 6 April, 1906, leaving as bis beirs four children, B. A. Price, E. H. Price, A. B. Price and Bettie Pearsall, who are the plaintiffs, and W. P. Price, Lewis H. Price, John T. Price and C. D. Price. The defendant G. 0. Griffin has acquired the» interest of ~W. P. Price and C. D. Price by deeds duly executed to him in 1884, before this proceeding ivas commenced. If the deed from Jesse Price, Sr., to John 0. Price conveyed a fee-simple estate to the latter, the plaintiffs are not entitled to recover; so that the only question in the case is whether it conveyed a fee or only á life estate, with remainder, to his children surviving him. The difficulty presented in the case arises from the use of the word “surviving,” prefixed to the' word “heirs,” but we do not think this is sufficient to render inapplicable the rule in Shelley's case to this limitation. It is said that as one of the principal reasons for establishing this rule was to prevent the abeyance or suspension of the inheritance, it only applied to those limitations in which the word “heirs” (or some equivalent word of inheritance) is used,.on account of the maxim, nemo est hceres viventis. As, under this maxim, no one can be heir to a living person, the word “heirs” must necessarily refer to those who survive the ancestor, and the word “surviving,” therefore, is mere surplusage, just as we have held that the word “lawful,” in a limitation to the “lawful heirs” of a person, has no significance and does not restrict the ordinary meaning of the word “heirs.” Wool v. Fleetwood, 136 N. C., 460. In Caswell’s appeal, 41 Pa. St., 288, Judge Strong (afterwards a Justice of the Supreme Court of the United States), for the Court, said: “It is said there could be no other heirs than such as were living at the death of the ancestor; that the words Then living’ would be superfluous, unless the testator intended children by 'heirs/ and that in order to give ¿leaning to those words the technical words of limitation must give way and be treated as only a description of persons. "We are not convinced by the argument. Let it be admitted that the words 'then living’ are strictly of no legal meaning, when applied to heirs. This is no sufficient reason for holding that the testator, in the use of technical words of limitation, intended to depart from their ordinary legal meaning. It is not so easy to overcome the presumption. The words ‘heirs’ and ‘beirs of tbe body’ will retain tbeir significance, though the effort be to make unmeaning other words in the will not technical, and even though there may be inconsistent expressions. If the words are repugnant, why should the word ‘heirs’ give way, rather than the words ‘then living’? In the will of an unlettered man, however, they can hardly be called repugnant. Lawyers may understand that there are no heirs of a living person, or that the phrase ‘living heirs’ is a superfluous addition to a gift to heirs, but laymen may not.” He adds that the books are full of cases in which it has been held that superfluous expressions in a will do not suffice to reduce the word “heirs” or “heirs of the body” into words of purchase, so as to make them the root of a new inheritance or the stock of a new descent, or descriptio personarum: Chancellor Kent (4 Kent’s Comm., 13 Ed., 226) says that Mr. Hargrave, in his observations on the rule, is for giving it a most absolute and peremptory obligation. “He considered that the rule was beyond the control of intention when a fit case for its application existed. It was a conclusion of law of irresistible efficacy, when the testator did not use the words ‘heirs’ or ‘heirs of the body,’ in a special or restrictive sense, for any particular person or persons who should be the heir of the tenant for life at .his death, and in that instance inaptly denominated ‘heir,’ and when he did not intend to break in upon and disturb the line of descent from the ancestor, but used the word ‘heirs’ as a nomen collecti-vum for the whole line of inheritable blood. It is not, nor ought to be, in the .power of a grantor or testator to prescribe a different .qualification, to heirs from what the law prescribes, when they are to take in their character of heirs; and the rule, in its wisdom and policy, did not intend to leave it to the' parties to decide what should be a descent and what should be a purchase.” The heirs of a man are his descendants who survive him and are capable of inheriting at the time of his death. At no other time can it be ascertained who his heirs will be. They may be his lineal descendants or those only who are related to him collaterally. Hardage v. Strooks, 58 Ark., 306. In the case of Watts v. Clardy, 2 Fla., at pp. 389, 390, where the limitation was very much like the one in this case, it is said: “The term 'surviving heirs’ is one of unusual occurrence in the books, for whilst we have 'survivors,’ ‘surviving children,’ ‘sons,’ ‘issue’ and ‘daughters,’ there is in the books no such word attached to heirs, as far as we have been able to discover; and we are inclined to the opinion that, so connected, it is without meaning, neither enlarging nor contracting the estate. The heirs of Mrs. Clardy, from necessity, are those who survive her at-her death; they could 'not have preceded her. Nemo est hwres viveniis. There is no heir until the death of the ancestor. The fair import of the clause, then, would seem to be that the estate is to go to the heirs of her body at her decease. If this view be correct, the case is freed from difficulty, and the deed is a naked grant to the heirs of the body. Obviously those who take as surviving heirs claim as heirs to the mother at her.death, and, taking as heirs, they take by’ descent. According to our view, the property would descend to the whole class of heirs of Mrs. Clardy, and they would become entitled to the estate in the same manner and. to the same extent and with the same descendible qualities as if the grant had been simply to her and her heirs.” The same conclusion was reached by the Court in Heister v. Yerger, 166 Pa. St., 445, in which.the Court said that “There is no distinction between the expressions ‘his then surviving heirs’ ahd ‘heirs then living at the time of their deaths.’ In each case the word ‘heirs’ refers to those who, under the intestate laws, would inherit from the- first taker qua heirs.” In May v. Lewis, 132 N. C., 115, this Court construed the following devise: “I loan unto nrf son Benjamin May my entire interest in the tract •of land (describing it), to be his during ’his natural life, and at his death I give said land to his heirs, if any, to be theirs in fee simple, forever; and if he should die without heirs, said land to revert to his next of kin.” "We held that the rule in Shelley's case did not apply, because of the closing words, which changed the ordinary course of descent; but it was said that “if the devisor had concluded the limitation with the words “to his heirs,- if any, to be theirs in fee simple, forever,” the rule would have applied and given to Benjamin May a fee simple. In other words, that the expression, “if any,” would not in such a case prevent the application of the rule. By the words “if any” tbe devisor evidently meant if any living or surviving, or, to state it differently, to tbe “living” or “surviving” heirs,- “if any.” Tbe Court further said in that case that tbe person designated by the technical word “heir” is be on whom tbe law casts an inheritance at tbe time of tbe ancestor’s death, citing Croom v. Herring, 11 N. C., 393, where Henderson, J., so defines tbe word. The limitation in this ease cannot be differentiated from one to a person and, at bis death, to bis beirs, for bis beirs must be ascertained at that time. They are those upon whom, at bis death, tbe inheritance or descent is cast. In tbe case of Richards v. Bergavenny, 2 Vernon, 324, tbe estate was limited to tbe Rady Bergavenny and such beirs of her body as should be living at her death, and, in default of such' heirs of her body, tbe remainder over. Tbe Court held^ that tbe Lady Bergavenny took an estate in fee tail, and did not attach any importance to tbe words “living at her death” as having tbe effect to restrict tbe words “beirs of her body” so as to cut down her estate to one for life. This case has often been cited as an authority in support of tbe position that such words cannot be allowed to reduce tbe quantity of this estate or to free tbe limitation from tbe operation of tbe rule in Shelley’s case. We aré authorized to examine the context of tbe deed in order to ascertain tbe true meaning of words which we are required to construe, when they are ambiguous. Gudger v. White, 141 N. C., 507; Railroad v. Railroad, 147 N. C., 368. In this way we may determine whether tbe words “surviving beirs” were used as desigantio personarum, or as descriptive of those persons upon whom tbe law easts tbe inheritance, under tbe canons of descent, p,s beirs of John C. Price and not as purchasers from Jesse Price, or as those who take under tbe law and not under the deed. Looking at tbe instrument in its entirety, we find that, in addition to tbe words we have already-taken from tbe deed, tbe clause of warranty contains a covenant for quiet enjoyment, which runs, not to John C. Price for life, and then to bis “surviving beirs,” but “to him and to bis beirs and assigns, forever.” This may be slight evidence of what tbe grantor meant when be used tbe words “surviving beirs”; and while this may be so, it is not to be disregarded, but may be considered as shedding some light upon tbe question in controversy. Tbe form of tbe covenant is. in perfect harmony with tbe interpretation we have given to tbe words of tbe limitation, “to him during tbe- term of bis lifetime,” and, at bis decease, “to tbe surviving heirs of tbe said John C. Price.” It evinces a purpose to give him tbe fee, and not merely a life estate, by. tbe use of proper words of inheritance which are sufficient for tbe application of tbe rule of law laid down in Shelley’s case.

We believe our conclusion to be supported by recent decisions of this Court as to tbe application of tbe rule in Shelley’s case. Leathers v. Gray, 101 N. C., 162; Nichols v. Gladden, 117 N. C., 497; Chamblee v. Broughton, 120 N. C., 170.

As John 0. Price acquired by tbe deed from bis father a fee-simple estate, be conveyed the same estate to tbe defendant G. 0. Griffin by tbe deeds executed in 1884, and the plaintiffs consequently have no interest in tbe land as tenants in common with tbe defendants. Tbe ruling of tbe court was therefore correct.

No Error.  