
80 S.E.2d 29 (1954)
239 N.C. 386
CLAYTON et al.
v.
BURCH et ux.
No. 754.
Supreme Court of North Carolina.
January 29, 1954.
*31 Burns & Long, R. B. Dawes, Roxboro, and Royster & Royster, Oxford, for defendants, appellants.
Davis & Davis, Roxboro, for plaintiffs, appellees.
PARKER, Justice.
When necessary to accomplish the testator's intent as ascertained from the context of the will, the court may disregard improper use of capital letters, punctuation, misspelling and grammatical inaccuracies, especially where the will is written by an unlearned person. Bell v. Thurston, 214 N.C. 231, 199 S.E. 93; Mewborn v. Mewborn, N.C., 79 S.E.2d 398.
To carry out the testator's intent it is apparent that the words in the will "if not then if my Grand Sound Silus Daynel Clayton if he a living" should read "if not then to my Grand Sound Silus Daynel Clayton if he a living." (Italics ours). The appellants contend this on p. 7 of their brief. It is also apparent that the words in the will "if Ether one of my grand-Sons Shold die any my grand Soun Stanley be living, etc." should read "if Ether one of my grand Sons Shold die and my Grand Soun Stanley be living, etc." (Italics ours).
This question is presented: Was John W. Clayton devised a life estate in the land in controversy or a defeasible fee? The answer must be sought in the testator's intent as set forth in his will; for under the accepted rules of construction the written and not the unexpressed intent must control. West v. Murphy, 197 N.C. 488, 149 S.E. 731. "It is elementary that a will must be construed as it is written." Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404, 410.
In West v. Murphy, supra [197 N.C. 488, 149 S.E. 732], the testator devised land to his granddaughter, Bertie Hill, so long as she should live, and if no children, then to her brother, Frank Hill, the granddaughter being a child at the date of the will. The granddaughter died leaving her surviving a child. We quote from the opinion. "A gift to a person absolutely, with a provision that, if he die without leaving children, the property shall go to another, vests in the primary devisee a common-law fee conditional, which is defeasible upon his death without leaving a child. Sadler v. Wilson, 40 N.C. 296; Whitfield v. Garris, supra [134 N.C. 24, 45 S.E. 904]; Dawson v. Ennett, 151 N.C. 543, 66 S.E. 566; Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Smith v. [Ellington-Guy] Lumber Co., 155 N.C. 389, 71 S.E. 445. In the cited cases the devisees *32 took an estate in fee, defeasible upon the happening of a subsequent event; but the principle upon which they are founded has no application to devises in which by the terms of the will the first taker acquires only a life estate. To this rule there is an exception. A life estate thus given may be enlarged into a fee, when the particular disposition is to be determined, not as a rule of construction, but, as in Shelley's Case, as a rule of law or a rule of property, regardless of an intent to the contrary appearing in the will. Reid v. Neal, 182 N.C. 192, 108 S.E. 769; Nobles v. Nobles, 177 N.C. [243], 245, 98 S.E. 715. But as shown in many of our decisions the exceptions serve to clarify and impress the rule. For example, a father having devised to his daughter Mary an estate during her natural life and to the heirs of her body, on condition, if she had no heirs of her body, the estate should go to his son, it was held that Mary took a life estate. Bird v. Gilliam, 121 N.C. 326, 28 S.E. 489. In May v. Lewis, 132 N.C. 115, 43 S.E. 550, it was held that Benjamin May was given a life estate by the following devise: `I loan unto my son Benjamin May my entire interest in the tract of land, * * * 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 back to his next of kin.' In a later case the following clause was construed: `I leave Martha Morgan, wife of James Morgan, 48½ acres of land * * * during her life, then to her bodily heirs, if any; but if she have none, back to her brothers and sisters.' The Court said that Martha thereby acquired an estate for her natural life. Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15, 16. On this point the following cases of later date are equally conclusive: Jones v. Whichard, 163 N.C. 241, 79 S.E. 503; Blackledge v. Simmons, 180 N.C. 535, 105 S.E. 202; Wallace v. Wallace, 181 N.C. 158, 106 S.E. 501; Reid v. Neal, supra; Welch v. Gibson, 193 N.C. 684, 138 S.E. 25. The principle pervades all the recent decisions in which the question is discussed, and, indeed, so rigidly is it applied that a devisee for life with power of disposition takes an estate, not in fee, but only for his natural life. Chewning v. Mason, 158 N.C. 578, 74 S.E. 357, 39 L.R.A.,N.S., 805; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626. It is obvious, therefore, that Bertie Hill was given only a life estate under the fifth item of the will."
In Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 34 A.L.R. 952, the testator in Item 6 of his will gave "unto the lawful heirs of my son Nathaniel Pierce Hampton all of the lands and chattel property that belongs to me at the death of me and my wife Nancy and if my son should die without a bodily heir then my property to go back into the Hampton family." The court said: "Members of the Hampton family, of course, are potentially among the heirs general of the first taker; but they are not all, and this ulterior limitation would exclude others among his heirs who were not of the blood of the original stock." The rule in Shelley's Case was held not applicable.
In Williams v. Johnson, 228 N.C. 732, 47 S.E.2d 24, 26, these were the material items of the will. In Item 3 the testator gave a life estate in said tract of land to Mrs. Odie Phillips, wife of Mat Phillips, who was testator's son, provided she remain a widow. In Item 4, after the death of the said Odie Phillips he devised to his grandchildren, to-wit: the children of Mat Phillips, for and during the term of their natural lives the said land, and after the death of the said grandchildren, then to their bodily heirs, or issue surviving them, and in the event any of said grandchildren shall die, without leaving him surviving issue or issues, then to his next of kin in fee simple forever. In this case the Court said: "The term `next of kin', when used in a deed or will in connection with a limitation over upon the failure of issue, nothing else appearing to the contrary, means `nearest of kin' or `nearest blood relation', and restricts its meaning to a limited class of nearest blood relations, to the exclusion of those enumerated as next of kin in the statute of distribution." Citing authorities. The *33 Court held that the rule in Shelley's Case did not apply.
Stacy, C. J., speaking for the Court in Welch v. Gibson, 193 N.C. 684, at page 691, 138 S.E. 25, at page 28, says: "When there is an ulterior limitation which provides that, upon the happening of a given contingency, the estate is to be taken out of the first line of descent and then put back into the same line, in a restricted manner, by giving it to some, but not to all, of those who presumptively would have shared in the estate as being potentially among the heirs general of the first taker, this circumstance may be used as one of the guides in ascertaining the paramount intention of the testator, and, with other indicia, it has been held sufficient to show that the words `heirs' or `heirs of the body' were not used in their technical sense." The Chief Justice then goes on to state that herein lies the distinction between Rollins v. Keel, 115 N.C. 68, 20 S.E. 209; Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15; Jones v. Whichard, 163 N.C. 241, 79 S.E. 503; Pugh v. Allen, 179 N.C. 307, 102 S.E. 394; Blackledge v. Simmons, 180 N.C. 535, 105 S.E. 202; Wallace v. Wallace, 181 N.C. 158, 106 S.E. 501; Reid v. Neal, 182 N.C. 192, 108 S.E. 769, and Hampton v. Griggs, supra, and Benton v. Baucom, 192 N.C. 630, 135 S.E. 629.
In Tynch v. Briggs, 230 N.C. 603, 54 S.E.2d 918, 919, the testator devised to his wife S., all the remainder of his real estate for the term of her natural life and after her death to my son J., for the period of his natural life, in remainder to his lawful heirs, and in the event the said J. should die without lawful heirs then in remainder to my daughter Sallie Ann for her life, and after her death to the heirs of her body lawfully begottenand in the event of the death of the said Sallie Ann without heirs of her body lawfully begotten then said lands shall be exposed to public sale and the proceeds from the sale shall be equally divided among all my children then alive and the lawful heirs of any child that may be dead. The Court went on to say that our first concern is to determine who were meant by the testator as "lawful heirs" of J. as second takers, and that J. could not die without heirs in the general sense as long as Sallie Ann his sister lived. The Court said: "On a contextual reading we must regard the language employed in the devise not as referring to general heirs, but as descriptio personarum and find it impossible to reconcile its use with the rule in Shelley's Case. It does not apply. Hampton v. Griggs, supra; Puckett v. Morgan, supra; Francks v. Whitaker, 116 N.C. 518, 21 S.E. 175; Rollins v. Keel, 115 N.C. 68, 20 S.E. 209; Bird v. Gilliam, 121 N.C. 326, 28 S.E. 489; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662."
The defendants in their brief contend that Whitfield v. Garris, 131 N.C. 148, 42 S.E. 568, petition to rehear denied in 134 N.C. 24, 45 S.E. 904; Morrisett v. Stevens, 136 N.C. 160, 48 S.E. 661; and Sessoms v. Sessoms, 144 N.C. 121, 56 S.E. 687, support their position. In Jones v. Whichard, 163 N.C. 241, 79 S.E. 503, 505, the deed employed this language in substance: Witnesseth, that the said Major Jones in consideration of love and affection conveys unto his son, Robert M. Jones, his heirs and assigns, a tract of land, to have and to hold said land to him the said Robert M. Jones and his wife during their natural life, and then to their legal bodily heirs, provided they leave any, and if not, to be equally divided among his nearest of kin. This Court held the rule in Shelley's Case did not apply. Hoke, J., (later C. J.) speaking for the Court, said: "The cases of Morrisett v. Stevens, 136 N.C. 160, 48 S.E. 661, and Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904, and others cited by counsel, when properly understood, do not militate against this construction. In Whitfield's Case and in Morrisett's Case the ulterior disposition of the property was not, and was not intended as, a limitation on the estate conveyed to the first taker, but was a provision whereby one stock of inheritance on certain contingencies was substituted for another, the second to hold as purchasers direct from the grantor and original owner. Sessoms v. Sessoms, 144 N.C. 121, 56 S.E. 687."
The other cases cited in defendants' brief have been examined, and are distinguishable.
*34 The case states that Euphenia Clayton has been dead many years, that when John S. Clayton died he had eight granddaughters and four grandsons livingone grandson born the day he died.
When the testator used these words "I give to My Grand Sound John W. Clayton the land (which he describes) to have and to hold his life time, thence to his Body ars if he has Eney and if not then to (we have changed it to read toItalics ours) my Grand Sound Silus Daynel Clayton if he a living but if J. W. Clayton Shold hav a body hir it shall go to them down to the Tenth Jenerration," and when later on in his will he used these words "if Ether one of my grand-Sons Shold Die and (any has been changed to read andItalics ours) my grand Soun Stanley be living and thay Shold not leave a Body heir he Shal hav thair Share," it is obvious that John W. Clayton was given only a life estate under the will. The words of the will do not give the land to John W. Clayton absolutely with a provision that if he die without bodily heirs it shall go elsewhere, but give it to him "to have and to hold his life time, thence to his Body ars if he has Eney and if not then to my Grand Sound Silus Daynel Clayton, etc." Reading the will from its four corners, we think that it is clear and plain that John S. Clayton's intent and purpose when he used the words "thence to his (John W. Clayton's) Body ars if he (John W. Clayton) has Eney" and the words "but if J. W. Clayton Shold hav a body hir it shall go to them down to the Tenth Jenerration" and the words "if Ether one of my grand-Sons Shold Die and my grand Soun Stanley be living and thay Shold not leave a Body heir he Shal hav thair Share" was to use the words "Body ars", "body hir" and "Body heir" of John W. Clayton as descriptio personarum, and not to use the words in their strict and technical sense of heirs, for these words obviously mean that if John W. Clayton die without children, the land is to be taken out of the first lines of descent, and then put back into the same line in a restricted manner by giving the land first to Silas Daniel Clayton, and then if he dies without children by giving it to Stanley Clayton, when the testator had' eight granddaughters and four grandsons living, when he died. Therefore, the rule in Shelley's Case does not apply. Whitson v. Barnett, 237 N.C. 483, 75 S.E.2d 391, where numerous cases are cited; Tynch v. Briggs, supra; Williams v. Johnson, supra; Welch v. Gibson, supra.
The words in the will the land "shal never be Sold for Eney pupus what Sover" are void. Lee v. Oates, 171 N.C. 717, 88 S.E. 889; Williams v. Sealy, 201 N.C. 372, 160 S.E. 452; Williams v. Mc-Pherson, 216 N.C. 565, 5 S.E.2d 830. Provisions against alienation in a deed or will do not defeat the estate to which they are annexed. In such case the conveyance or devise stands and the invalid provision is rejected. Lee v. Oates, supra.
The words in the will the land "Shall go to them down to the Tenth Jenerration" are void, being within the rule against perpetuities. Jackson v. Powell, 225 N.C. 599, 35 S.E.2d 892.
After stating that Shelley's Case was decided in 1581 Dean Samuel F. Mordecai, one of the greatest and wittiest law teachers our State has had, says in his Law Lectures, Vol. One, p. 654: "We see gathered around the `Rule in Shelley's Case' Coke, Blackstone, Mansfield, Fearne, Junius and Lord Campbell-all great names in the history of our law and literaturenot to mention many other great legal luminaries whose participation in fixing and unfixing this `settled' rule, which will not remain settled, I have not time to tell about."
It is interesting to read what two of our brethren have said about Shelley's Case. Stacy, C. J., in Welch v. Gibson, supra, says: "The origin of the rule, (in Shelley's Case) as well as the wisdom of its adoption, has been the subject of much curious and learned speculation. Though found among the remains of feudality, it is neither a relic of barbarism nor a part of the rubbish of the dark ages, but rather a Gothic column, as it were, which has been preserved to aid in sustaining the fabric of our modern social system." Douglas, J., in *35 Stamper v. Stamper, 121 N.C. 251, 28 S.E. 20, 22, calls Shelley's Case "the Don Quixote of the law, which, like the last knight errant of chivalry, has long survived every cause that gave it birth, and now wanders aimlessly through the reports, still vigorous, but equally useless and dangerous."
The judgment of the lower court is
Affirmed.
