Turner v. . Turner

Stacy, O. J. The parties to the present proceeding, having a question in difference which might properly become the subject of a civil action, have submitted the same for determination without action, upon an agreed statement of facts, as authorized by C. S., 626. The question to be determined is whether the children of a second marriage share with the children of their father by a prior marriage, as tenants in common, in real property acquired during the first marriage under a deed conveying said property to the father and his then present wife, naming her, “during the term of their natural lives and after the death of each and both of them then to their children in fee simple.” The trial court was of the opinion, and so held, that, under the decision in Williams v. Williams, 175 N. C., 160, 95 S. E., 157, the *373 children of the first marriage alone were entitled, as remaindermen, to the land acquired under this deed. In this we find no error. The words “their children” may be used in an inclusive sense to designate the children of the husband and wife and the children of either, and in an exclusive sense to designate the children of the husband and his then present wife or of the wife and her then present husband. Neither law nor common usage has affixed such unvarying meaning to the word “their” as to prevent its appropriate use for either purpose. Hence, in determining the sense in which such words are used in a contract, will or deed, regard must be had to the circumstances, and the intent of the parties, as well as to the subject-matter. Lehman v. Lehman, 215 P. A., 344. In the instant case we think the words “their children” were used in an exclusive sense, meaning simply the children of Alfred Turner and his then present wife, Minerva Turner. The principles announced in Roberson v. Griffin, 185 N. C., 38, 115 S. E., 824, are not applicable to the facts of the present record. It follows from what is said above that the judgment of the Superior Court, is correct. Affirmed.