Burgin v. . Patton

58 N.C. 425 | N.C. | 1860

Samuel W. Davidson, by his will, devised and bequeathed as follows: "The balance of my estate, real and personal, to be equally divided amongst my heirs, except John Burgin, who has treated me badly and now owes me $600, which he refuses to pay. I forgive that, and nothing more of my estate."

Adeline, the daughter of the testator, was married to John Burgin, mentioned in the above clause. At the time of making the said will, the said Adeline was dead, having left the defendants John A. Burgin, M. E. Burgin, Harriet E. Burgin, Samuel D. Burgin, and Adeline L. Burgin, her children, surviving. There were five other grandchildren, the children of Albert C. Davidson, a deceased son, living (426) also at the time the will was made. He had also, at this time, three surviving children, all of whom (children and grandchildren) are made parties to this bill. The plaintiffs are the executors of the said Samuel W. Davidson, and the bill is filed to obtain a construction of the above recited clause of the will. The plaintiffs ask to be informed. whether the children of Adeline can come in as heirs of the testator; and if so, whether they take per stirpes or per capita, and the latter information is sought as to the children of Albert C. Davidson. The testator, at the time of his death, left several children and two sets of grandchildren, the children, respectively, of a deceased son and daughter. After a few devises and bequests in his will, he adds: "The balance of all my estate, real and personal, to be equally divided amongst my heirs, except John Burgin, who has treated me badly, and now owes me $600, which he refuses to pay. I forgive that, and nothing more of my estate." John Burgin, thus spoken of, was the husband of the testator's deceased daughter, and is the father of one of the sets of his grandchildren above mentioned. The balance of the estate contained in the residuary clause of the will comprises the greater part of the testator's property, and a question is made whether it is to be equally divided between the testator's heirs per stirpes or per capita. It is well established as a general rule that if a testator gives an estate to be equally divided between A. and B. and the heirs of C., and the latter has several children, the division will be per capita; but if there be anything in the will indicative of an intention that the devises or legatees shall take as families, the general rule will not apply, and the property will be divided per stirpes, and not per capita. For instances in which the general rule was applied, see Ward v. Stowe, 17 (427) N.C. 509; Bryant v. Scott, 22 N.C. 155; Harris v. Philpot, 40 N.C. 134; Cheeves v. Bell, 54 N.C. 234, and Feimster v. Tucker, ante, 69; and for instances of an exception to the general rule, see Spiveyv. Spivey, 37 N.C. 100; Martin v. Gould, 17 N.C. 305; Henderson v.Womack, 41 N.C. 437; Bivens v. Phifer, 47 N.C. 436; Lowe v. Carter,55 N.C. 377; Gilliam v. Underwood, 56 N.C. 100; Lockhart v. Lockhart,ibid., 205, and Roper v. Roper, ante, 16. The present case differs from all those to which we have referred, either as falling under the general rule, or as being exceptions to it. The gift of the property is to the testator's own heirs, equally to be divided among them. As to the real estate, we think the division must be per stirpes, either because the devise is inoperative, and the heirs take by descent, or, if the expression "equally to be divided amongst my heirs" make them take by purchase, the rules of descent must be resorted to for the purpose of ascertaining who are the testator's heirs to take as purchasers, and the rule in relation to the right of representation must be observed as well as any other. Ascertaining thus that the rule of division per stirpes applies to the real estate, it must likewise apply to the personal estate, because it is manifest that the testator intended that both kinds of his property should go together. There is another ground on which we think the division per stirpes must be applied to the present case. The testator seems to have thought that John Burgin was one of his heirs because he had been the husband of his deceased daughter. In excluding him from the division among his heirs, the inference is almost irresistible that he intended to exclude his children also, for whom he supposed their father to stand. He failed in the accomplishment of his purpose, because John Burgin is not one of his heirs, but his children, as a class, are. He evidently designed to cut them off as a unit, but as he did not do so, and they can come in under the description of his heirs, they must come in as a unit, and must takeper stirpes as representatives of their mother. If this argument be well founded, it must apply also to the children of the testator's (428) deceased son, for we cannot believe the testator intended one class of his grandchildren should be regarded in a different light from the other. It is too well settled to need the citation of many authorities for its support that the term "heirs," when used with reference to those to whom personal estate is given, means those who take by law or under the statute of distributions. Kiser v. Kiser, 55 N.C. 28; Brothers v.Cartwright, ibid., 113.

A decree may be drawn for the settlement and division of the estate, both real and personal, of the testator among his heirs and next of kin,per stirpes, according to the principle declared in this opinion.

PER CURIAM. Decree accordingly.

Cited: Lee v. Baird, 132 N.C. 766.