Boylan v. . Boylan

62 N.C. 160

• Court: Supreme Court of North Carolina
• Decided: January 5, 1867
• Status: Published

Opinion

Battle, J.

The only question presented in this case has been already settled by this court in the case of Mordecai v. Boylan, 6 Jon. Eq., 365. We entertained no doubt then, as we entertain none now, that as the testator clearly shows by his will that he understood the distinction between children and grandchildren, the division of the residue of his estate directed to be made among “his children” cannot embrace 'grandchildren and great-grandchildren. This is admitted to be the general rule, to which, however, there are two exceptions: first, “from necessity, which occurs where the will would remain inoperative unless the sense of the word ‘ children ’ were extended beyond its natural import; and (secondly) where the testator has clearly shown by other words that he did not intend to use the term 1 children’ in its proper, actual meaning, but in a more extensive sense.” 1 Roper on Leg., 69. Neither of these exceptions applies to the case at bar, because the testator left children, as well as grandchildren and great-grandchildren, and it is manifest from his will that he knew the distinction between them.

A decree may be drawn according to this opinion.

Per Curiam.

Decree accordingly.