In Re Battle

Supreme Court of North Carolina

In Re Battle

44 S.E.2d 212, 227 N.C. 672, 1947 N.C. LEXIS 521

CourtSupreme Court of North Carolina

DecidedSeptember 24, 1947

StatusPublished

Cited by5 cases

This text of 44 S.E.2d 212 (In Re Battle) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Battle, 44 S.E.2d 212, 227 N.C. 672, 1947 N.C. LEXIS 521 (N.C. 1947).

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Opinion

Winborne, J.

This is the sole question on this appeal: Do such of “the children and grandchildren” of the testator as survived the devisee named take the home farm per capita and not per stirpes? The decisions of this Court furnish an affirmative answer. See Shull v. Johnson, 55 N. C., 202; Leggett v. Simpson, 176 N. C., 3, 96 S. E., 63; Ex Parte Brogden, 180 N. C., 157, 104 S. E., 177; Mitchell v. Parks, 180 N. C., 634, 105 S. E., 398; Burton v. Cahill, 192 N. C., 505, 135 S. E., 332; Lamm v. Mayo, 217 N. C., 261, 7 S. E. (2d), 501; Tillman v. O’Briant, *674 220 N. C., 114, 18 S. E. (2d), 131; Wooten v. Outland, 226 N. C., 245, 37 S. E. (2d), 682. Further elaboration is necessarily repetitious.

However, the general rule is that where the devise is to a class, the devisees take share and share alike unless it clearly appears that the testator intended a different division. Shull v. Johnson, supra; Tillman v. O’Briant, supra, and cases cited.

In the present case, as said by Clark, C. J., in Leggett v. Simpson, supra, “There is nothing in the will which impairs the usual rule of construction that where a devise is to a class collectively, and not by name to various devisees in the class, all the members of the class take per capita■ and not per stirpes."

In the devise here the words, “such of my children and grandchildren as may survive him,” are merely descriptive of the group of devisees designated by the testator. The language is clear and affords no occasion for interpretation. Cannon v. Cannon, 225 N. C., 611, 36 S. E. (2d), 17. Therefore, the only inquiry to be made is who of his children, and who of his grandchildren survived the named devisee. They collectively constitute the devisees to whom the property is devised, — without preference one over the other.

The present case in factual situation is not unlike the case of Tillman v. O’Briant, supra. There the devisees were ''Maggie Rhew’s children” and two others. There were seven of the children. Stacy, C. J., writing for the Court, says: “The bequest here is to Maggie Rhew’s seven children and two others, the words 'Maggie Rhew’s children’ being descriptive of the first seven of the nine named legatees. Ex Parte Brogden, supra. This is the meaning usually ascribed to such language.” And the Court held that the nine as members of the class took per capita.

The judgment below is

Affirmed.

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Winborne, J.

This is the sole question on this appeal: Do such of “the children and grandchildren” of the testator as survived the devisee named take the home farm per capita and not per stirpes? The decisions of this Court furnish an affirmative answer. See Shull v. Johnson, 55 N. C., 202; Leggett v. Simpson, 176 N. C., 3, 96 S. E., 63; Ex Parte Brogden, 180 N. C., 157, 104 S. E., 177; Mitchell v. Parks, 180 N. C., 634, 105 S. E., 398; Burton v. Cahill, 192 N. C., 505, 135 S. E., 332; Lamm v. Mayo, 217 N. C., 261, 7 S. E. (2d), 501; Tillman v. O’Briant, *674 220 N. C., 114, 18 S. E. (2d), 131; Wooten v. Outland, 226 N. C., 245, 37 S. E. (2d), 682. Further elaboration is necessarily repetitious.

However, the general rule is that where the devise is to a class, the devisees take share and share alike unless it clearly appears that the testator intended a different division. Shull v. Johnson, supra; Tillman v. O’Briant, supra, and cases cited.

In the present case, as said by Clark, C. J., in Leggett v. Simpson, supra, “There is nothing in the will which impairs the usual rule of construction that where a devise is to a class collectively, and not by name to various devisees in the class, all the members of the class take per capita■ and not per stirpes."

In the devise here the words, “such of my children and grandchildren as may survive him,” are merely descriptive of the group of devisees designated by the testator. The language is clear and affords no occasion for interpretation. Cannon v. Cannon, 225 N. C., 611, 36 S. E. (2d), 17. Therefore, the only inquiry to be made is who of his children, and who of his grandchildren survived the named devisee. They collectively constitute the devisees to whom the property is devised, — without preference one over the other.

The present case in factual situation is not unlike the case of Tillman v. O’Briant, supra. There the devisees were ''Maggie Rhew’s children” and two others. There were seven of the children. Stacy, C. J., writing for the Court, says: “The bequest here is to Maggie Rhew’s seven children and two others, the words 'Maggie Rhew’s children’ being descriptive of the first seven of the nine named legatees. Ex Parte Brogden, supra. This is the meaning usually ascribed to such language.” And the Court held that the nine as members of the class took per capita.

The judgment below is

Affirmed.

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Bluebook (online)

44 S.E.2d 212, 227 N.C. 672, 1947 N.C. LEXIS 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-battle-nc-1947.

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