20 S.E. 209 | N.C. | 1894
"In interpreting wills it is the duty of the court to ascertain and give effect to the intention of the testator. Technical rules of construction and decided cases serve only as aids rather than as binding rules in the discharge of such duties. The meaning of every will, and its several parts, depends largely upon the circumstances of the testator as these appear from the will itself. The meaning attributed by him to words and phrases, when it appears, must prevail, however different this may be from that ordinarily implied by such *50
words and phrases in other wills or other written instruments. The sole and controlling purpose is to ascertain what the testator, whose will may be under consideration, intended." Applying these principles of interpretation to the will of Rufus Rollins, we experience no difficulty in reaching the conclusion that the words "any lawful heirs" should be construed to mean issue. In other words the limitation (71) should read "that if the said Joseph shall die without issue, then the same (the lands devised), after the expiration of the widowhood of my wife, shall enure to my brother Reuben A. Rollins, his heirs and assigns forever." It is plain that the devisor intended that his widow should have the land until Joseph attained the age of eighteen years, and that if he should die without issue she should have it only during her widowhood. If the words "lawful heirs" are to be taken in their technical sense, the widow would, in the event of Joseph's dying without issue, or brother or sister, or the issue of such (and this was the case), take the fee as heir of her son. This would defeat the intention of the devisor, as it is clear that he did not intend that she should have any interest in the land in the event of her marrying again. This view is well sustained by the reasoning of the court in Patrick v. Morehead,
Joseph having died without issue, and the widow having married, the limitation over to Reuben must take effect, and his heir, the plaintiff, is entitled to recover. Reversed.
Cited: Franks v. Whitaker,