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 stripes 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, etc., then the division must be per stirpes.
BATTLE, J.
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: First, 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; secondly, 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 unnecessary 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 absolutely.
Assuming then that the widow took a life estate only in the land and personalty, we must inquire how the division of the remainder is to be made between the devisees and legatees thereof. There is nothing in the will to show that the words "heirs-at-law," as applied to the testator, were not used in their technical sense, and therefore we are bound to take them in that sense, and to hold that all of the brothers of the testator who were living at his death, together with the children of his deceased sister, took the part given to them, both realty and personalty, per stirpes. For this Rogers v. Brickhouse, (10) 58 N.C. 301, is a direct authority.
This rule being established for the division among the "heirs-at-law" of the testator, we must also apply it to the division between them as a class, and the "heirs" of the widow. We can not find any authority for a construction which will, under the same clause of a will, cause a division partly per stirpes and partly per capita among the objects of the testator's bounty. On the contrary, we find it laid down in Lockhart v. Lockhart, 56 N.C. 205, that even where there are different clauses of a will, if the testator use words in one clause which describe the devisees or legatees as a class, and again refers to them by the same words, they must be taken as a class in the second clause. That principle is decisive of the present case, and the division between the heirs of the testator's widow and his own heirs-at-law must be per stirpes.
Where a direction is given in a will for the equal division of a fund among several named persons and "the heirs" of another, and it appears that by "heirs" is meant children, as in Ward v. Stowe, 17 N.C. 509, and Harris v. Philpot, 40 N.C. 324, such division must be per capita; but when the phrase, "heirs of," etc., must include not only children, but grandchildren as representatives of deceased children, then the division among all the devisees and legatees must be per stirpes.
In this case the decree will direct a division, by which the only heir and next of kin of Mary G. Sawyer shall have one-half of the remainder of the testator's property, and his own heirs-at-law and next of kin shall have the other half, to be divided among themselves per stirpes.
The costs of the suit must be paid out of the estate.
PER CURIAM. Decree accordingly.
Cited: Cooper v. Cannon, post, 84.
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