Opinion
(September Term, 1894.)
Will, Construction of — Intention of Testator — "Lawful Heir," When Construction to Mean Issue.
1. In the interpretation of a will it is the duty of the court to ascertain and give effect to the intention of the testator; and the meaning attributed by him to words and phrases, if it appears from the will or the circumstances surrounding him, must prevail, although it differs from that ordinarily attaching to such words and phrases as used in other wills or other written instruments.
2. A testator provided in his will as follows: "I lend to my wife all my lands until my son Joseph shall have attained the age of eighteen years, and then I give said lands to him, the said Joseph, him, his heirs and assigns, forever: Provided, however, that if the said Joseph shall die without leaving any lawful heir, then the same, after the expiration of the widowhood of my wife, shall enure to my brother Reuben, his heirs," etc. Joseph was the only child and heir at law of the testator, and died without issue a few years after the death of the latter. The widow of the testator remarried after the death of Joseph. In an action by the heirs of Reuben to recover the lands: Held, that the words "any lawful heir," as used in the will, should be construed to mean "issue," since it was the evident intention of the testator that his wife should have the land only during her widowhood, in case Joseph died without issue, which intention would be defeated by taking the words "lawful heir" in their technical sense; for upon Joseph's death without issue or brother or sister, or the issue of such, his mother would take as his heir.
ACTION, for the recovery of a tract of land, tried before Bynum, J., at April Term, 1894, of PITT, on the following case agreed:
"1. On 6 October, 1881, Rufus C. Rollins duly made and executed his last will and testament, with all the forms and solemnities required by law, and sufficient in form to pass both real and personal estate.
"2. That every shortly thereafter, to wit, on 9 December, 1881, the said Rufus C. Rollins died, resident and domiciled in the county of Pitt, and his last will and testament was, on 15 December, (69) 1881, duly admitted to probate and recorded in said county.
"3. That the said last will and testament is in the following words and figures, to wit:
"STATE OF NORTH CAROLINA — Pitt County.
"I, Rufus C. Rollins, being of sound mind and memory, do on, this the 6th day of October, 1881, make and declare this my last will and testament, in the name of God: Amen.
"Item 1. I lend to my beloved wife Lorenda all of my lands until my son Joseph E. Rollins shall have attained the age of eighteen years, and then I give said lands to him, the said Joseph E. Rollins, him, his heirs and assigns, forever: Provided, however, that if the said Joseph E. Rollins shall die without leaving any lawful heir, then the same, after the expiration of the widowhood of my wife, shall enure to my brother Reuben A. Rollins, his heirs and assigns, forever; and I do hereby appoint my brother John R. Rollins my lawful executor to this my last will and testament, to all intents and purposes.
"4. That the said Rufus C. Rollins died seized and possessed of a certain tract of land in the county of Pitt, lying on the public road leading from the lands of John Page to the Greenville and Bethel roads, and adjoining the lands of W. W. Hunter, John Page and others, containing about fifty-six acres, of which thirteen acres are cleared.
"5. That the said Joseph E. Rollins mentioned in the said last will and testament was the only child and heir at law of the said Rufus C. Rollins.
"6. That the said Joseph E. Rollins died on 14 September, 1887, at about the age of six years, without issue and without brother or sister, or the issue of such.
"7. That the said Reuben A. Rollins mentioned in the said last will and testament died in October, 1889. (70)
"8. That the plaintiff Ernest A. Rollins is the only child and only heir-at-law of the said Reuben A. Rollins.
"9. That in February, 1890, the widow of the said testator, Rufus C. Rollins, and one of the defendants in this action, intermarried with the other defendant, William Keel.
"10. That the defendants are in possession of the said land, and have refused, upon demand, to deliver possession.
"11. That the annual rental value of said land is $20."
Under the above case agreed, judgment was rendered in favor of the defendants and against the plaintiff, who appealed.
Larry I. Moore and Latham Skinner for plaintiff.
No counsel contra.
"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 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, 85 N.C. 62.
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, 116 N.C. 520; Bird v. Gilliam, 121 N.C. 327; Sain v. Baker, 128 N.C. 258; May v. Lewis, 132 N.C. 118; Wool v. Fleetwood, 136 N.C. 471; Pitchford v. Limer, 139 N.C. 15; Faison v. Odom, 144 N.C. 109; Harrell v. Hagan, 147 N.C. 115; Puckett v. Morgan, 158 N.C. 347; Faison v. Moore, 160 N.C. 149; Jones v. Whichard, 163 N.C. 245; Pugh v. Allen, 179 N.C. 309.