Rollins v. Keel Et Ux

• Decision Date: 24 October 1894
• Court: North Carolina Supreme Court
• Parties: ROLLINS . v. KEEL et ux.

20 S.E. 209

115 N.C. 68

ROLLINS .

v.KEEL et ux.

Supreme Court of North Carolina.

Oct. 24, 1894.

Construction of Will—"Heir" Used in Sense of "Issue. "

Testator devised lands to his only son, and provided that, in case of the death of such son "without any lawful heir, " the lands should go to testator's brother on the expiration of the widowhood of testator's wife. Held, that the phrase "without any lawful heir" should be construed to mean "without issue."

Appeal from superior court Pitt county; Bynum, Judge.

Action by Verdie E. Rollins against William Keel and wife to recover possession of land. Judgment for defendants, and plaintiff appeals. Reversed.

Larry I. Moore and Latham & Skinner, for plaintiff.

SHEPHERD, C. J. "In interpreting wills, it is the duty of the court to ascertain and give effect to the intention of the testator. Technical rules of construction and decided cases serve only as aids, rather than as binding rules, in the discharge of such duties. The meaning of every will and its several parts depends largely upon the circumstances of the testator, as these appear from the will itself. The meaning attributed by him to words and phrases, when it appears, must prevail, however different this may be from that ordinarily implied by such words and phrases in other wills or other written instruments. The sole and controlling purpose is to ascertain what the testator, whose will may be under consideration, intended." Applying these principles of interpretation to the will of Rufus Rollins, we experience no difficulty in reaching the conclusion that the words "any lawful heir" should be construed to mean "issue." In other words, the limitation should be read "that if the said Joseph shall die without issue, then the same [the lands devised], after the expiration of the widowhood of my wife, shall inure to my brother, Reuben A. Rollins, his heirs andassigns, forever." It Is plain that the devisor intended that his widow should have the land until Joseph attained the age of 18 years, and that if he should die without issue she should have it only during her widowhood. If the words "lawful heir" are to be taken in their technical sense, the widow would, in the event of Joseph's dying without issue, or brother or sister, or the issue of such (and this was the case), take the fee as heir of her son. This would defeat the intention of the devisor, as it is clear that he did not intend that she should have any interest in the land in the event of her...