Haywood v. . Rigsbee

Sci-ieNCK, J. "We are called upon to construe tbe following language: “The said trust is to continue and exist for thirty years from tbe time of my death, and is then to be closed by an equal distribution of tbe fund among my children and their issue.” Item Thirteenth. At tbe expiration of thirty years from tbe death of tbe testator, namely, on 29 November, 1933, there were living six children of tbe testator, and there were two deceased children who died without issue. Some of the now six living children of tbe testator have children, in all twelve and some of the now living children of the testator have grandchildren, in all seven. The appellants contend that the trust fund of the testator should be divided into twenty-five (25) equal shares and distributed share and share alike among the children, grandchildren, and great-grandchildren of the testator, and the appellees contend that the trust fund should be divided into six (6) equal shares and distributed share and share alike among the now living children of the testator. In the construction of a will the predominant and controlling purpose of the testator must prevail when ascertained from the general provisions thereof over particular and apparently inconsistent expressions to which standing alone a technical force would be given. The intention of the testator is the paramount consideration, and we must look to the entire instrument for the indicia of this intention. Item Second to Item Ninth, inclusive, give to each of the testator’s eight children certain parcels of real estate in fee and certain parcels for life, with remainder over to their children, and Item Thirteenth establishes a thirty-year trust and provides that the trustee “shall pay such income (from the trust) semi-annually on the first days of January and July in each year in equal proportion to my wife and each of my children, or if any child be dead leaving children then alive, his or her parent’s share shall be paid to him, her or them, but when the issue of any dead child becomes extinct before the final distribution of the trust, such *693 share shall vest in and belong to the surviving members of the class equally as herein originally provided, that is to my children or their children”; and near the close of the will is the following: “I declare that I consider my children as all, not liable to any other for any advancement, and I treat them as equal in my estate.” "We think it is clear that the testator intended to make an equal division among his children of that portion of his estate given to them absolutely and of the income from the trust he established; and, unless the words “and their issue” be isolated and given a strict technical construction by interpreting them as meaning lineal descendants of any generation, it also appears that the testator intended that the equality among his children should be maintained not only before and during the existence of the trust, but also upon the close thereof, when the funds therein were to be distributed. When the clause under consideration is construed in connection with the will as a whole, we think it is manifest that the intention of the testator was to divide his entire estate, real and personal, whether given absolutely or in trust, equally among his several children, and the issue of such children as may be dead at the expiration of the trust. It is in the character of issue of his deceased children that any others than the testator’s children were made objects of his bounty. Since there are no children, or issue of such, of any deceased child of the testator, we are of the opinion that there should be an equal distribution among the children of the testator of the funds of the trust which was terminated 29 November, 1933. To give the will the construction contended for by the appellants would place the children of the children of the testator in competition with their parents, and the grandchildren of such children in competition with their parents and grandparents, and would prevent equality of distribution among the children of the testator. While it may be true that if the phrase “equal distribution” and the word “issue” be given their strict technical meanings, without reference to the will as a whole, they might sustain the contention of the appellants, yet it is well recognized that if certain phrases or words used in a will, taken in their technical sense, would dispose of property per capita when it is apparent from the context that the testator meant to provide for a stirpital disposition, the Court will so hold. If there is anything in the will indicative of the intention that the devisees or legatees shall take as families the property will be divided per stirpes and not per capita. Lee v. Baird, 132 N. C., 755 (766), and cases there cited. In Martin v. Gould, 17 N. C., 305, where the testator gave his residuary estate “to be equally divided, between my son Daniel and three *694 grandsons (naming them), to them and their heirs forever/’ it was held that although, taking the residuary clause by itself, the grandsons would not take as a class but each an equal share with his uncle, yet, in view of a preceding clause of the will showing that the testator meant to deal equally between his two sons, and to make the children of his deceased son stand in their father’s stead, the son took one-half the residue and the grandsons the other half. And since the context showed that, the testator meant to deal equally between his son and the children of a deceased son, and to make such children stand in their father’s stc-ad, the force of the word “equally” in the residuary gift to the son and grandsons was overcome. “The usual acceptance of the word ‘issue’ is ‘an indefinite succession of lineal descendants who are to take by inheritance, and hence heirs of the body.’ . . . But, when used in wills, it is, of course, subject to the rule of construction that the intention of the testator, as ascertained from the will, is to have effect, rather than the technical meaning of the language used by him; . . .” Edmondson v. Leigh, 189 N. C., 196 (201). There is a clash among the decisions in the various jurisdictions as to the meaning to be given to the word “issue” or “descendants,” some courts holding that the words include descendants of every degree, and are to be given that meaning in the absence of explanatory context, and thereby permit children or descendants of lower degree to share per capita with living parents; and some courts holding that in the absence of explanatory context a per stirpes division of property devised to issue or descendants should be directed, and thereby preclude children taking with their living parents. The two principles are in conflict and any attempt to reconcile them would be futile. (For an interesting discussion of these conflicting principles, with collection of authorities, see 83 A. L. R., 164.) However, ive are not called upon at this time to choose, without precedent, between them, since in James v. Hooker, 172 N. C., 780, this Court is placed in accord with the latter principle. In that case the grantor conveyed land to Penelope E. Dancy, the wife of George A. Dancy, “for and during the qieriod of her natural life, with remainder over after the expiration of her life estate to the children now or hereafter born of the intermarriage of the said George A. Dancy and Penelope and the lawful descendants of said children, their heirs or assigns, that are living at her death.” In construing this language, Mr. Justice Hoke said: “The primary and linguistic definition of descendants refers to the lineal issue or heirs of the dead and not a living parent or ancestor, and when the term is used in reference to tenure of property and without anything to change or modify the ordinary meaning, authority is to the effect that it refers to persons upon whom the *695 law has cast the property by descent and includes only the lineal issue of a deceased ancestor.” Not only do we have this authority of our own court but the authority of the courts of many other jurisdictions. When we consider the expressed purpose of the testator, contained in the later clauses of his will, to treat all his children as equal in his estate, and to have his will construed as a whole, together with the scheme of parity among the testator’s children that permeates the entire instrument, we are led to the conclusion that the construction placed upon the will by his Honor was a correct one. The judgment of the Superior Court is Affirmed. Bbogden, J., took no part in the consideration or decision of this case.