105 S.E. 398 | N.C. | 1920
Special proceedings for partition among the parties of a tract of 162 1/2 acres, which was allotted, under the will of Rolley Brim to Katharine Brim, the widow of Rolley Brim, and the rights of the parties depend upon the construction of item 2 of his will, which, with some other sections, is as follows:
"Item 2. I give and bequeath to my wife two good beds and one cow. . . . Also I bequeath to her one-third of all my real estate, including my homestead, after all my debts are paid, during her widowhood. At my widow's death all this property shall go to the heirs of Nancy Ann Mitchell (dec.), wife of Jerry Mitchell, and to the bodily heirs of Jemima Edna Boaze, the wife of Abraham Boaze.
"Item 4. I give and bequeath to the heirs of my daughter Nancy Ann Mitchell, now (dec.) wife of Jerry Mitchell, one-half of the remainder of my estate to hold forever.
"Item 5. I give and bequeath to the heirs of Jemima Edna Boaze (wife of Abraham Boaze) the remainder of my estate to hold forever.
"Item 6. I devise that the heirs above named under my said will shall not have the right to sell or convey any real property conveyed under my said will within a period of twenty years after my death. After the period of the said twenty years, they may sell or convey the same at will.
"Item 7. If any of the above named heirs should die (within the said period of twenty years) without issue of them of their own body, all the rights and heirship shall cease as to the real property of my estate."
The court held, and so adjudged, that under item 2 of the will the division must be made per stirpes and not per capita. Defendants appealed.
after stating the case: The question before us calls for a construction of item 2 of the will, and its meaning must be determined by a consideration of the entire instrument in order to ascertain what was the intention of the testator. It is generally held that a devise or bequest to the children of two or more persons, whether expressed as to the children of A. and B., or to the children of A. and the children of B., or to other relatives of different persons, usually means that such children or relatives shall take per capita and not per stirpes, unless it is apparent from the will that the testator intended them to take per stirpes. But a devise or bequest to the heirs of several persons will usually go perstirpes. 40 Cyc., 1495. The text is sustained by the authorities cited in the note. Alder v. Beall,
It will be observed that throughout the will the testator uses the word "heirs" to describe those who shall take his estate, and in the seventh item he provides that if any of "the above named heirs" should die "within the said period of twenty years without issue of their own body, all the rights and heirship shall cease as to the real property." He evidently intended not a single class taking among themselves, but those who should take by classes or families in the quality or character of heirs; and, besides, in items four and five he actually divides the estate into halves, one of which should go to Nancy's children and the other to Jemima's, which, of course, is a division per stirpes. This tends to show that he was of the opinion that in item 2 he had used words sufficient to create a division per stirpes, though his language is somewhat obscure, or less clear and definite than it is in items 4 and 5. He meant that it should be divided in the same way both as to the 162-acre tract and the remainder of his estate. This, of course, is said regardless of the great weight of authority as to how such language should be interpreted, it being perstirpes.
We are, therefore, satisfied that we have reached the right conclusion as to his "true intent and meaning," and we accordingly affirm the judgment.
Affirmed.
