Grandy v. Sawyer

• Decision Date: 30 June 1866
• Citation: 62 N.C. 8
• Court: North Carolina Supreme Court
• Parties: THOMAS J. GRANDY v. EDMUND G. SAWYER, Adm'r., and others.

62 N.C. 8

THOMAS J. GRANDY

v.EDMUND G. SAWYER, Adm'r., and others.

Supreme Court of North Carolina.

June Term, 1866.

*1 A testator provided as follows: “I lend unto my beloved wife, Mary G. Sawyer, all of my real and personal estate, to have and to hold the same during her natural life, and at her death I give the same to be equally divided between the heirs of my beloved wife, Mary G. Sawyer, and my heirs at law.” Held, upon the death of the wife, that:

1. The rule of distribution per stirpes governs as well the division between the “heirs” of the wife, and “heirs at law” of the testator, as that of the portion given to the latter class, among themselves.

2. Technical words, in the absence of explanation upon the face of a will, will be taken in a technical sense.

3. A word repeated in the same clause of a will must, at each repetition, have the same meaning attached to it.

4. Where a direction is given for the equal division of a fund among several named persons, and “the heirs” of another person, and it appears that by “““heirs” is meant children, such division must be per capita; but when the word ““heirs” must include not only children, but grandchildren, &c., then the division must be per stirpes.

(The cases, Rogers v. Brickhouse, 5 Jones' Eq., 301; Lockhart v Lockhart, 3 Jones' Eq., 205; Ward v. Stow; 2 Dev. Eq., 509, and Harris v. Philpot, 5 Ire., 324, cited and approved.)

ORIGINAL BILL, filed at Spring Term, 1866, of the Court of Equity for Camden county, praying for a settlement of the estate of Malachi G. Sawyer, deceased. The complainant was sole heir and next of kin of the widow of the deceased, and the defendants, other than the administrator, were the heirs and next of kin of the deceased. Answers were filed at the first term, and a report ordered and made. The cause was then, by consent, set for hearing, and transferred to this court.

No further statement is necessary.

Hinton and Winston, for the complainant .

Smith, for the defendants .

BATTLE, J.

*2 The pleadings present for construction the following clause in the will of Malachi G. Sawyer: “I lend unto my beloved wife, Mary G. Sawyer, all of my real and personal estate, to have and to hold the same during her natural life, and at her death, I give the same to be equally divided between the heirs of my beloved wife, Mary G. Sawyer, and my heirs at law.”

Two questions are raised: 1st, Whether the testator's widow took a life estate only in all the property, real and personal, of the testator, or a life estate in one-half of the property, and an absolute estate in the other half by virtue of the rule in Shelly's case; 2ndly, If she took a life estate only in the whole property, then, whether the persons answering to the descriptions, “heirs of the widow,” and “heirs of the testator,” take per stirpes, or per capita.

We deem it unnessary to decide the first question, because we are clearly of opinion that the division between the heirs of the testator, and those of his widow, must be per stirpes, which will cause the devolution of the property to be the same as if the widow were to take one-half...