Will, Construction of — Intention of Testator — "Lawful Heir," When Construction to Mean Issue.
1. In the interpretation of a will it is the duty of the court to ascertain and give effect to the intention of the testator; and the meaning attributed by him to words and phrases, if it appears from the will or the circumstances surrounding him, must prevail, although it differs from that ordinarily attaching to such words and phrases as used in other wills or other written instruments.
2. A testator provided in his will as follows: "I lend to my wife all my lands until my son Joseph shall have attained the age of eighteen years, and then I give said lands to him, the said Joseph, him, his heirs and assigns, forever: Provided, however, that if the said Joseph shall die without leaving any lawful heir, then the same, after the expiration of the widowhood of my wife, shall enure to my brother Reuben, his heirs," etc. Joseph was the only child and heir at law of the testator, and died without issue a few years after the death of the latter. The widow of the testator remarried after the death of Joseph. In an action by the heirs of Reuben to recover the lands: Held, that the words "any lawful heir," as used in the will, should be construed to mean "issue," since it was the evident intention of the testator that his wife should have the land only during her widowhood, in case Joseph died without issue, which intention would be defeated by taking the words "lawful heir" in their technical sense; for upon Joseph's death without issue or brother or sister, or the issue of such, his mother would take as his heir.
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 heirs" should be construed to mean issue. In other words the limitation (71) should 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 enure to my brother Reuben A. Rollins, his heirs and assigns forever." It is plain that the devisor intended that his widow should have the land until Joseph attained the age of eighteen years, and that if he should die without issue she should have it only during her widowhood. If the words "lawful heirs" 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 marrying again. This view is well sustained by the reasoning of the court in Patrick v. Morehead, 85 N.C. 62.
Joseph having died without issue, and the widow having married, the limitation over to Reuben must take effect, and his heir, the plaintiff, is entitled to recover. Reversed.
Cited: Franks v. Whitaker, 116 N.C. 520; Bird v. Gilliam, 121 N.C. 327; Sain v. Baker, 128 N.C. 258; May v. Lewis, 132 N.C. 118; Wool v. Fleetwood, 136 N.C. 471; Pitchford v. Limer, 139 N.C. 15; Faison v. Odom, 144 N.C. 109; Harrell v. Hagan, 147 N.C. 115; Puckett v. Morgan, 158 N.C. 347; Faison v. Moore, 160 N.C. 149; Jones v. Whichard, 163 N.C. 245; Pugh v. Allen, 179 N.C. 309.