Taylor v. Taylor

• Decision Date: 14 November 1917
• Docket Number: 385.
• Citation: Taylor v. Taylor, 174 N.C. 537, 94 S.E. 7 (N.C. 1917)
• Parties: TAYLOR ET AL. v. TAYLOR ET AL.
• Court: North Carolina Supreme Court

94 S.E. 7

174 N.C. 537

TAYLOR ET AL. v. TAYLOR ET AL.

No. 385.

Supreme Court of North Carolina

November 14, 1917

Appeal from Superior Court, Guilford County; Long, Judge.

Action by M. D. Taylor and others against H. Clay Taylor and others. From judgment for defendants, plaintiffs appeal. Affirmed.

The law favors construction of will which gives to devisee vested interest as early as possible and not contingent interest.

This is a proceeding to sell land for division. John B. Taylor was the owner of said land, and he died leaving a holographic will, which has been duly admitted to probate, and is as follows:

"I John B. Taylor of the County of Guilford and State of North Carolina being at this time of sound and disposing mind and memory but always mindful of the unsertainty of life and being disposed of making a just and equitable disposition of my property I have made this my last will and testament in manner and form following

item 1 I give and devise to my beloved wife Mary J. Taylor the track of land on which I now live for and during her widowhood including two tracks Bought of J. W. McMerry together with all cattle and hogs sheep farming tools household and kitchen furniture

item 2 I give to my wife Mary the grain on the farm with the horses and mules and wagons and harness to have for her benefit

item 3 I will that the balance of my estate be equally divided amongst my living children

item 4 and at the expiration of my wife's intrust on land and property divid it equally among my living childrain.

I hear By apoint my wife Mary J. Taylor my executrix to execute this my last will and testament Whereof I have hereunto set my hand and seal this the 17th day of July 1885.

John B Taylor."

The said John B. Taylor had thirteen children, one of whom died before said will was made, leaving children, and two of the surviving twelve died after the death of the said John B Taylor and prior to the death of his wife, Mary J. Taylor leaving children, and ten of them survived the said Mary J. Taylor. The child who died prior to the making of the will married against the will of his father. The ten surviving children are the petitioners, and the children of the two who died after the death of the testator are the defendants; they claiming as the heirs at law of the deceased children. The said John B. Taylor left property other than that devised to his wife for life.

The petitioners contend that the words "my living children" in the will mean children living at the death of the said Mary J. Taylor, and the defendants contend that these words mean children living at the death of the testator. His honor held with the defendants and rendered judgment accordingly, and the plaintiffs excepted and appealed.

Clifford Frazier, of Greensboro, for appellants.

Chas. A. Hines and C. R. Wharton, both of Greensboro, for appellees.

ALLEN J.

It is true, as contended by the petitioners, that a devise to children does not include grandchildren (Lee v. Baird, 132 N.C. 755, 44 S.E. 605), and that when the devise is to survivors after a life estate the time usually adopted for determining who comes within the class is the death of the life tenant and not the death of the testator ( Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302); but these are not principles of substantive law, but rules of interpretation, which should be resorted to to ascertain the intention of the testator, and not to defeat it ( Crossley v. Leslie, 130 Ga. 782, 61 S.E. 851, 14 Ann. Cas. 706).

It is also competent, in construing a will, "to consider the condition of the...