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daughters is given to them absolutely, but with an executory bequest over to the survivors upon the death of either intestate without heirs of his or her own body. The expression, 'without heirs of their own body,' manifestly means without issue or children. Now, it is clear that, if the plaintiff had been legitimate, his mother's 115 portion would not have been subject to the limitation over to the surviving brother and sister, but would have remained her absolute property, and, of course, would have devolved upon her personal representative and then have gone to the plaintiff as her next of kin. But, being illegitimate, he could not, at common law, have been regarded as the heir of her body—that is, her issue or child-and she would have been deemed to have died without any such heir, issue or child. This rule of the common law has been altered by the section and chapter of the Revised Statutes to which we have referred, and which was taken from the act of 1799 (chapter 522 of the Revised Code of 1820). The effect of that act has been to legitimate the plaintiff as to his mother, and to make him, in law, the heir of her own body, or her issue or child: See Kimbrough v. Davis, 16 N. C. 71; Coor v. Starling, 54 N. C. 243."

We do not understand that plaintiff's urgently insist that the court should attach any great importance to the use of the word "lawful," prefixed to "heir" in the devise. In the absence of a contrary intent clearly indicated in the will, the term does not at all mean "legitimate," but simply the person designated by law to take by descent. It is more frequently used in wills without special meaning, being intended, and as a rule should not be allowed any controlling significance. Thus Montgomery, J., in Francks v. Whitaker, 116 N. E. 518, 21 S. E. 175: “The word ‘lawful' may be stricken out as meaningless, for there is no such anomaly in law as an unlawful heir." And Walker, J., in Wool v. Fleetwood, 136 N. C. 460, 48 S. E. 85, 67 L. R. A. 444, says: “There can be no such thing as an unlawful heir. The term 'lawful' heirs means the heirs designated by law to take from their ancestor.” But the position of plaintiffs was made to rest chiefly on several decisions of this court, notably Rollins v. Keel, 115 N. C. 68, 20 S. E. 209, and Francks v. Whitaker, 116 N. C. 518, 21 S. E. 175, in which the limitation over was expressed in terms not dissimilar to those of the present devise, and in which the words 116 «

“lawful heir," by reason of certain other provisions, were held to mean “issue" (this chiefly because the ulterior limitation was to persons who would be included among the heirs general of the first taker); and, assuming that this word “issue" is equivalent to children, the plaintiffs seek to apply to the present devise the principle, more rigidly enforced in some former decisions of the court, that under the term “children" illegitimate children do not take unless clear indication of such intent can be gathered from the will and the condition of the parties.

We do not think this is a permissible construction from the cases cited, and for the reason, among others, that the term “issue,” in Rollins v. Keel, 115 N. C. 68, 20 S. E. 209, and in Francks v. Whitaker, 116 N. C. 518, 21 S. E. 175, was not used in the sense of children simply, but in its primary and more usual meaning: “An indefinite succession of lineal descendants who are to take by inheritance, and hence ‘heirs of the body': 23 Cyc. 359, 17 Am. & Eng. Ency. of Law, p. 543; Underhill on Wills, sec. 669; Abbot v. Essex Co., 59 U. S. 202, 15 L. ed. 352. This being the sense in which the words were used in the decisions referred to, they bring the children of the devisee within the clear meaning of the descriptive words of the devise. Even if the word “issue” was used in the sense of children in the authorities referred to, we doubt if it would aid the plaintiffs. While the general principle for which plaintiffs contend has prevailed with us, the strictness with which this “rigid rule” of the common law was applied in some of the older cases has been commented on in later decisions, and, while the older cases have not been expressly overruled, it seems that the courts will readily extend the term “children” to include illegitimate children where such an intent can be gathered from the words of the will and the condition of the parties, and more especially when, from the operation of the statute, the illegitimate children come clearly within the descriptive words of the devise: Sullivan v. Parker, 113 N. C. 301, 18 S. E. 347; Howell v. Tyler, 91 N. C. 207; Doggett v. Mosely, 52 117 N. C. 587. If the word “child” should be required from the effect of other provisions of the will, it should be considered a child which more nearly fits the language and clear import of the devise. “If either die without lawful heir," is the language used, and if the word “child” is substituted it should be held to include any child capa le of being an heir of the first taker in remainder.

It is earnestly contended by the learned counsel for plaintiířs that the decision of Fairly v. Priest, 56 N. C. 383, is only authority where the illegitimate child was in existence at the making of the will, and where, from other portions of the will, it was clear that the devisor contemplated that the illegitimate child should take. But, while these facts existed in the case cited, and are referred to in the opinion, they are only given as supporting the conclusion, which was made to rest mainly on the fact that, by the operation of the statute making the illegitimate child an heir of the mother, the claimant filled the description of the devise and came within its terms.

The decision is, we think, a direct authority sustaining the position of defendants, and should control the construction of the devise upon which their title rests. There is error, and on the facts agreed judgment should be entered for defendants.


The Words Child'' or Children,'' when used in a statute, will or deed are usually held prima facie to mean legitimate child or children only: Robinson v. Georgia R. R. etc. Co., 117 Ga. 168, 97 Am. St. Rep. 156; Lavigne v. Ligue Des Patriotes, 178 Mass. 25, 86 Am. St. Rep. 460; note to Thomas v. Thomas, 73 Am. St. Rep. 415.

An Illegitimate Child could not inherit even from its mother at the common law, but this rule has been changed by statute in man jurisdictions: Orthwein v. Thomas, 127 Ill. 554, 11 Am. St. Rep. 159; Hayden v. Barrett, 172 Mass. 472, 70 Am. St. Rep. 295; Alabama etc. Ry. Co. v. Williams, 78 Miss. 209, 84 Am. St. Rep. 624.



[147 N. C. 234, 60 S. E. 1134.] DEATH-Time Limited for Bringing Action.-A provision in a statute giving a right of action for wrongful death "to be brought within one year,” is not a statute of limitations which must be pleaded, but it is a condition annexed to the cause of action which the plaintiff must prove in order to make out a prima facie case. (p. 545.)

DEATH-Time Limited for Bringing Action.—The fact that no administrator was appointed for the estate of one whose death has been caused by negligence is no excuse for not bringing an action therefor within the one year prescribed by statute. (p. 546.)

Robinson & Caudle, H. H. McLendon, J. T. Bennett and J. A. Lockhart, for the plaintiff.

John D. Shaw and Murray Allen, for the defendant.

234 BROWN, J. The defendant moved to dismiss the action because the evidence of plaintiff disclosed that the action had not been commenced within one year from the death of plaintiff's intestate. The intestate died April 16, 1902, and the action was not commenced until January 26, 1906. The plaintiff contends that the statute of limitations has not been pleaded in the answer, and, further, that there was a prolonged contest over letters of administration upon the intestate's estate, begun June 7, 1902, and ended in June, 1905, which time should not be counted, under Revisal, section 369. This action is brought under section 59 of the Revisal of 235 1905: “Whenever the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their administrators, executors, collectors or successors, shall be liable to an action for damages, to be brought within one year after such death, by the executor, administrator or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default causing the death amount in law to a felony."

Unfortunately for the plaintiff's case, this court has heretofore interpreted the words “to be brought within one year, contained in the statute, as a condition annexed to the cause of action, and not as a statute of limitation which must be pleaded. Before the plaintiff can make out a prima facie case he must offer evidence tending to prove that the action was commenced within one year after death.

In Taylor v. Cranberry I. & C. Co., 94 N. C. 525, Justice Merrimon, speaking for the court, says: “This is not strictly a statute of limitation. It gives a right of action that would not otherwise exist, and the action to enforce it must be brought within one year after the death of the testator or intestate. It must be accepted in all respects as the statute gives it.'

In Best v. Kinston, 106 N. C. 205, 10 S. E. 997, it is held that the fact that no administrator was appointed does not vary the rule, as no explanation why the action was not brought within one year can avail. These cases are cited with approval in the more recent case of Hartness v. Pharr, 133 N. C. 566, 98 Am. St. Rep. 725, 45 S. E. 901.

The old law prohibiting usury contained a similar clause, requiring that the action must be commenced within two

Am. St. Rep., Vol. 125-35

years. It was held not to be a statute of limitation and that the statute need not be pleaded; for, says the court, “Unless he commences his action within two years from the usurious transaction, he has no cause of action'': Roberts v. Life Ins. 236 Co. of Virginia, 118 N. C. 429, 24 S. E. 780; Tayloe v. Parker, 137 N. C. 418, 49 S. E. 921. The present statute in respect to usury is different, and creates a statute of limitation. This condition which the legislature has annexed to the cause of action works no hardship upon the next of kin, for whose benefit the statute was enacted, for the statute provides that the action may be brought by a collector as well as an executor or administrator. Doubtless the General Assembly wisely intended to compel the commencement of such actions before time had obliterated the evidence relating to the cause of death. The fact that a controversy over the administration was pending could not prevent the next of kin of plaintiff's intestate from having a collector appointed, who could have brought the action within the statutory time. By reason of their failure to do so they have now no cause of action which the administration can assert. The motion to nonsuit is allowed.


As to the Time Limited Within Which an Action for wrongful death may be maintained, see Atlantic etc. R. R. Co. v. McDilda, 125 Ga. 468, 114 Am. St. Rep. 240; Nelson v. Galveston etc. Ry. Co., 78 Tex. 621, 22 Am. St. Rep. 81. The requirement of the statutes of North Carolina that an action for wrongful death must be brought within one year is not a statute of limitations; a failure to commence an action in that state within that time extinguishes not only the remedy, but the right, so that thereafter an action cannot be maintained in South Carolina: Dennis V. Atlantic Coast Line R. R, Co., 70 S. C. 254, 106 Am. St. Rep. 746.



[147 N. C. 263, 60 S. E. 1133.] CONTRACTSPurchase of Editorial Columns.-A contract whereby a newspaper agrees to devote its editorial columns to promote the interests of a railroad company is against public policy, and not enforceable. (p. 549.)

CONTRACTS-Agreement to Aid Election.—A contract to aid in carrying an election for a bond issue is against public policy, and not enforceable. (p. 549.)

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