Boylan v. Boylan, 62 N.C. 160, 1 Phil. Eq. 160 (1867)

Jan. 1867 · Supreme Court of North Carolina

62 N.C. 160, 1 Phil. Eq. 160

JOHN W. BOYLAN and others v. JOHN S. BOYLAN and others.

Wiere it appears, from otter parts of a will, that tte testator understood tte distinction between “children” and issue more remote, grandchildren and great-grandchildren cannot be included in a division directed to be made among children.

(Mordecai v. Boylan, 6 Jon. Eq., 805, cited and approved.) ‘

Bill, for the sale of land for partition, and the construction of a paragraph of the will of William Boylan, deceased, filed to Fall Term, 1866, of the Court of Equity for Wake, and upon bill and answer transmitted to this court.

The complainants are the sons and daughters, and a husband of one of the daughters, of the testator. The defendants are two grandsons and a great-granddaughter, and claimed to have an interest in the land. The will 'of the testator, filed as part of the bill, is voluminous, and the lands prayed to be sold are embraced in the residuary clause, as follows:

“Twentieth. All the residue of my property, whether real or personal, or wheresoever situate, not herein disposed of, I give, devise and bequeath to my children.”

In other parts of the will devises and bequests are made to the several parties to this suit, by name, and their respective relationship to the testator is incidentally noticed.

Moore, and Phillips & Battle, for the petitioners.

Hayivood, for the defendant John S. Boylan.

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.