Edmondson Ex Rel. Leigh v. Leigh

Clarkson, J. The two questions presented in this appeal are: (1) Ho the words “issue,” “the whole of their children, . . . according to the laws of this State,” and “children,” used in the testator’s will, include and embrace testator’s great-grandchildren (the children of children who died prior to the first life takers) ? (2) Was the partition had between Francis M. Leigh and William Gr. W. Leigh (the two life tenants) binding upon the remaindermen who were entitled to the land and the possession thereof upon the death of the life tenants, or either of them? It is settled law in this State that the intent of the testator, as expressed by the terms and language of the entire will, must be given effect unless in violation of law. “Every tub stands upon its own bottom,” except as to the meaning of words and phrases of a settled legal purport. A will must be construed “taking it by its four corners.” Patterson v. McCormick, 181 N. C., p. 313; Smith v. Creech, 186 N. C., p. 190; Wells v. Williams, 187 N. C., p. 138. The defendants rely strongly on Lee v. Baird, 132 N. C., p. 755. In that case, Mr. Justice H. G. Connor, says: “Certainly the use of the words ‘all my children’ by the testatrix is free from ambiguity and the uniform current of authority in this and other courts sustains the proposition that they will not be construed to include grandchildren unless from necessity, which occurs when the will would be inoperative unless the sense of the word ‘children’ were extended beyond its natural import and when the testator has clearly shown by other words that he did not use the term ‘children’ in the ordinary actual meaning of the word but in a more extensive sense; that this construction can only arise from a clear intention or necessary implication, as where there are no children but are grandchildren, or where the term children is further explained by a limitation over in default of issue.” *201 In the Baird will case, supra, tbe testatrix, Mrs. Baird, wben sbe made tbe will bad seven living children and six living grandchildren — children of a deceased daughter, Mrs. Lee. Sbe also bad numerous other grandchildren, children of living children. The deceased daughter, Mrs. Lee, had married a man of wealth and she had received large sums by way of advancements. Other pertinent facts appear in the will showing an intent as to the meaning of “all my children.” The main clause in the Baird will relied on, is as follows: “I bequeath to my daughter, Vickie Baird, all my household and kitchen furniture, to be hers forever, and I bequeath to Vickie during her life time my Forest Hill property; and at her death to be sold and divided equally among all my children.” The setting of the parties and the language in the Baird will are different from the instant case. In item 6, William C. Leigh, the testator, uses these words: “If Francis or William should either of them die without issue ... I give and bequeath all of my said land to the whole of their children, that is, one-half of said land to the children of each, according to the laws of this State ” etc. After that he uses the word “children” many times, but in the latter part of item 8 of the will he.says, in regard to the balance after the sale of certain land for the payment of debts and legacies by his executors, “I give and bequeath to my two sons, that is, Francis M. Leigh and William G. W. Leigh, to them and their heirs forever It will be noted that the testator used the words “die without issue” referring to the first takers — those who have a life estate. 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.” (Harrell v. Hagan, 147 N. C., 116.) He qualifies the word “children” by saying, "the whole,of their children . . . according to the laws of this State/'’ The law in regard to descent, C. S., 1654, Rule 3, is as follows: “Lineal descendant represents ancestor. The lineal descendant of any person deceased shall represent their ancestor, and stand in the same place as the person himself would haye done had he been living.” “The word ‘issue’ is usually construed to mean more than children. “In real law. Descendants. All persons who have descended from a common ancestor. 3 Ves., 257; 17 Ves., 481; 19 Ves., 547; 1 Rop. Leg., 90. In this sense, the word includes not only a child or children, but all other descendants in whatever degree; and it is so construed generally in deeds. 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; and hence, issue may, in such a connection, be *202 restricted to children, or to descendants living at the death of the testator, where such an intention clearly appears. Abbott.” Black’s Law Dictionary, p. 658. Harrell v. Hagan, supra; Fillyaw v. Van Lear, 188 N. C., 772. Taking the words “issue,” “the whole of their children . . . according to the laws of this State,” — after the executors were given power to sell certain land to pay debts and legacies, “the balance of the money to my two sons, that is Francis M. Leigh and "William G-. W. Leigh, to them and their heirs forever,” — it seems that by clear intention or necessary implication the grandchildren of the first takers would be entitled to their parent’s share. The fact that in subsequent portions of item 6 of the will “children” is used, we think the word “children” is taken as qualified by the word “issue” and “according to the laws of this State.” In Carroll v. Herring, 180 N. C., p. 372, it .is said: “The law, also, if possible, adopts the just, natural and reasonable rule of an equal distribution among children (40 Cyc., 1411), and if words are used in one part of a will in a certain sense, the same meaning is to be given them when repeated in other parts of the will, unless a contrary intent appears. It is a well settled rule of testamentary construction that if it is apparent that in one use of a word or phrase a particular significance is attached thereto by the testator, the same meaning will be presumed to be intended in all other instances of the use by him of the same word or phrase. Taylor v. Taylor, 174 N. C., 537.” Courts look to the will as a whole to discover testator’s intention. We think from reasonable, just and righteous interpretation of the entire will, the testator did not intend to exclude grandchildren of the first takers, and the holding of the court below was correct. We do not think the partition between the two sons, life tenants, binding on any one except themselves during their lifetime. This is so clear we do not think it necessary to discuss it. The judgment below is Affirmed.