Roper v. . Roper

58 N.C. 16 | N.C. | 1859

The questions in this case are presented by James T. Roper and Green D. Tyson, executors of the last will of Thomas Roper, who, for their protection, ask the advice of the court. The clause of the will upon which the main question arises and which is residuary is sufficiently recited in the opinion of the Court, and all the facts and other provisions of the will necessary to a proper elucidation of the case appear in the opinion also.

Cause set down for hearing upon bill, answers, and exhibit. The bill is filed by the plaintiffs, as executors of Thomas Roper, for the purpose of obtaining the advice of the Court as to the proper construction of the thirteenth clause of the will of their testator. That clause is in the following words: "I will and direct that all cash in hand, etc., and every other species or description of property (17) not otherwise devised or named in this will that I may own at my death shall be divided equally among the following heirs: My son, John W. Roper; my grandson, John T. Roper; Mourning Capel's children, that she has now or may hereafter have; Nancy Tyson's children, that she has now or may have hereafter; Martha Gay's children, that she has now or may hereafter have; James T. Roper's children, that he has now or may have hereafter, each one to share an equal proportion, share and share alike."

The first and main question is, do the children of the testator's three daughters and those of his son James take per capita with his son John W. Roper and his grandson John T. Roper? Or do the legatees mentioned in this clause take per stirpes?

The general rule in bequests of this kind is that the persons described in a class take in the same way as if each individual composing the class were called by his proper name, and, therefore, that each takes a share with the other persons named among whom the division is to be made. This is clearly shown by the cases of Northey v. Strange, 1 Peer Williams, 340; Blackler v. Webb, 2 ibid., 383; Ward v. Stowe, 17 N.C. 509;Bryant v. Scott, 22 N.C. 155, to which the plaintiffs' counsel has referred us. But there is an exception to the general rule quite as well established as the rule itself — that if there be anything in the will indicative of the intention of the testator, that the persons described in a class shall take as a unit, then the division shall be per stirpes and not per capita. See Bivens v. Phifer, 47 N.C. 436, where most, if not all, the preceding cases in this State on the subject are referred to; and see, also, the subsequent case of Lowe v. Carter, 55 N.C. 377; Gilliamv. Underwood, 56 N.C. 100, and Lockhart v. Lockhart, ib., 205. The only inquiry in the case now before us, then, is whether the will affords any indication of the testator's intention that the division which he has directed shall be per stirpes instead of per capita, and we are clearly of opinion that there is. The clause in question, it will (18) be perceived, not only provides for the existing children of the three daughters of the testator and of his son James, but also for such as they might have at any time thereafter. Such a provision it is competent for a testator to make, as we have recently decided in Shull v. Johnson,55 N.C. 202, and Shinn v. Motley, 56 N.C. 490. If, then, a division is to be made per capita between the children of the daughters and of the son James and the son John W. Roper and grandson John T. Roper, the respective share of the two latter would be altered and diminished with the birth of each afterborn child of the testator's daughters and son James. Such a result would be very inconvenient, and could have hardly been in the contemplation of the testator. He might very well intend, and no doubt did intend, that the shares to which each family of children should be entitled should be distributed among all the children whom their respective mothers or fathers might have at any time during their lives, which would, of course, cause those shares to vary as each successive child came into being. In every family the amount which any child may reasonably expect from the bounty of his parents is necessarily diminished with the increase of the numbers of his or her brothers and sisters; and in the same way, a fund which a testator may bestow upon a class of persons, each of whom will be equally near to him in blood or affection, may very properly be so given as to be subject to a new division as the class in enlarged by the birth of other children. The inconvenience of such an arrangement is the necessary consequence of a provision by means of a common fund for afterborn children. If confined as to each share to a single family the inconvenience will not be very great, but if it be extended to a number of persons and families, all of whom are to be affected by the coming into existence of a new participant of the fund, it will be almost intolerable, and the Court must suppose that no testator intended it unless the language of his will is too plain to admit of any other interpretation. In the present case, we think the clause of the will which raises the difficulty does admit of another interpretation which is quite as (19) consistent with the letter and much more in accordance with the spirit of the language which the testator has employed to express his intention. The property mentioned in the clause is directed to be "divided equally among the following heirs." The question is, what is meant by the word "heirs?" for it is manifest that the expression "each one to share one equal proportion, share and share alike," refers to "each one" of those whom the testator calls "heirs." We cannot say that the meaning of the term "heirs" is clear of doubt, but we are of opinion that the strong probability is that the testator intended by the use of that term to signify that John W. Roper was one heir, his grandson John T. Roper was a second heir, the children of his daughter Mourning Capel were together a third heir in the place and stead of their mother, and so on. We the more readily adopt this construction because the testator takes notice in other parts of his will that his three daughters, Mourning Capel, Nancy Tyson, and Martha Gay, and his son James, were alive, and he would more properly have called them "his heirs" if he had not preferred to give the property mentioned in the thirteenth clause to their children instead of to them. The grandchildren could in no sense be heirs to the testator during the lives of their mothers and fathers, but the testator could, without any great impropriety, call them so when he substituted them in the place of their parents. But in doing this he would necessarily mean that each class of children should represent the respective mother and father and take what each mother and father would have done had the property been given to them instead of their children. The conclusion is that the division directed by the clause in question must be per stirpes and not per capita.

The main question upon which the executors desire the instruction of the Court being thus settled, there is no difficulty in disposing of the others.

No time for the division being fixed by the will, the parties were entitled to have had it made as soon after the death of the testator as the executors were ready to make a final settlement of the (20) estate.

The shares to which the children of the daughters and son James are respectively entitled may be paid over to their respective guardians. The share of each class will be subject to division among the children born or to be born. When any child of a class shall come of age and demand his share, he may be required to give security for refunding if the birth of another child in his class shall render it necessary.

PER CURIAM. Decree accordingly.

Cited: Feimster v. Tucker, post, 74; Burgin v. Patton, post, 427;Chambers v. Reid, 59 N.C. 305.