Dicks v. . Young

AxleN, J. The land in controversy is the share allotted to J ames D. Elynt, who had no child at his death, and who left surviving him a brother, William J. Elynt, and children of his deceased brother, Walter M. Elynt, and of his sister Margaret. Do the children of Walter and Margaret take under the will or does the share of James go to William J. Flynt, who is the sole survivor of the four children named in item 3 of the will? The determination of the question depends on the proper construction ■of the language “but if either of my children shall die without leaving a child or children living at their death, then and in that case it is my will and desire that the portions of such so dying as aforesaid shall go to the survivors of them and their heirs forever,” and particularly of the words “survivors of them and their heirs forever.” The iM'imary rule, which has-been adopted by the courts as a guide, is to ascertain the intention of the testator from an examination of the whole will, and it is his intent when the will was made, and not what it may be supposed he would do with his property under changed conditions, that controls. It is also a correct principle, applicable alike to statutes, contracts, wills, etc., that “The intent of the framers and parties is to be sought, first of all, in the words employed, and if the words are free from ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the framers of the instrument, there is no occasion to resort to .other means of interpretation. Black Inter. Laws, 3Y.” Kearney v. Vann, 154 N. C., 315. The testator here uses no language that is not easily understood. He gives a large tract of land to his wife for life, and after her death to four children, who are named. He then provides that if either of the four children die without leaving a child, living at “their death” the share of such one so dying shall go to “the survivors of them," which ■can only mean survivors of the four children. In Underhill on Wills, Yol. I, sec. 351, the rule of construction, as applied to facts like ours, is stated as follows: “A question of construction frequently arises where the testator devises property, whether real or personal, to several devisees or to a ■class, bid if any of them should die without leaving issüe, or during *452 minority, or on another contingency, bis share to go to the survivor or survivors, and one or more of the primary devisees dies without leaving issue or under age, while others die leaving issue or attain majority. The question arises in disposing of the shares of those who die without issue whether the children of deceased legatees shall participate, or whether it is to go only to the actual survivors of the original class. The plain and strict signification of the word 'survivor' is one who outlives others, and in the above devise the word should receive its strict meaning, excluding the children, and also the next of Icin of those who have died before distribution. This natural meaning will be given to the words, and those only will take as survivors who are living at the death of the others without issue, in the absence of anything in the will clearly showing that the testator has employed the word with any other intention. “This rule of construction is applied to a limitation to survivors, though the testator has in fact expressly provided that the children of a deceased legatee shall take, by representation, the share which their parent had enjoyed. Though they may take this, they cannot take the share of one who has died without issue, for that goes to those only who survive the legatee so dying.” In case of Threadgill v. Ingram, 23 N. C., 577, the clause in the will which was construed, to wit: “I leave the whole of my other estate, as well negroes as goods and chattels, to be equally divided between my four children, John, Tabitha, and Nancy and Jesse Ingram; my executors to pay off each child’s part as they shall come to age; the boys to have their part when they come to the age of twenty-one, and the girls ’to have their part at the age of eighteen years. And if either of my children die without heirs lawfully begotten, then his or her part to be equally divided between my surviving children and their heirs forever,” is very much like the will now before us. John Ingram died in the year 1800, leaving two children; Jesse Ingram died in the year 1835, without issue;. Tabitha Ingram died in the year 1836, and the plaintiffs Threadgill were her administrators, and Nancy Ingram was still alive at the time of the suit. In that cáse it was contended that the children of John Ingram (John having died before his brother Jesse) were entitled to share in the property devised and bequeathed to Jesse, but the Court held otherwise. In that case it was contended that the four superadded words, to wit, “and their heirs forever,” would let in the children of John to share in the property of Jesse, devised and bequeathed in the will, although Jesse had died without children, but such contention was not sustained by the Court, the Court saying, “Must not the representative deduce his title by averring that his principal was a survivor? Could the representa *453 tive bave any pretense of claim without such averment? We tbink he could not. If, therefore, the representative’s principal was actually the survivor he, the principal,' must inevitably be permitted to take personally, and all chances of a perpetuity would of course cease. In the case now before the Court, the superadded words (‘and their heirs forever’)' appear to us to have been inserted only to denote the extent of the interest in the property, that the survivors should take, and not as a limitation to a description of persons who might at any indefinite time claim as heirs. How could a person claim as heir to a survivor if the ancestor was not in esse at the death of the first taker, so as to acquire the character of survivor ? The thing appears absurd. It seems to us that no other presumption can arise in this case, but that the testator intended a personal benefit to the survivors, and that the super-added words which he made use of do not repel the presumption. “Secondly. John died in the year 1800. Did his two children or his representative take? We think they do not take. The executory devise to John, in the legacy given to Jesse, was contingent; and as John did not survive Jesse, the executory devise never vested in him; and, therefore, there was nothing to be transmitted either to his representative or children.” All of the cases in our Reports, and many of the authorities elsewhere, are considered in Ham v. Ham, 168 N. C., 486, and the same conclusion reached. We are therefore of opinion his Honor was in error in holding that the children of Walter and Margaret take any part of the share of James under the will. Reversed.