{ "id": 8524638, "name": "LOIS RAWLS, ELLA V. JOYNER, GEORGE N. VAUGHAN, FANNIE LEE HASSETT, BLANCHE V. WHITEHEAD, J. T. VAUGHAN and CHARLES N. VAUGHAN v. ALMA RUTH V. RIDEOUT, J. GUY REVELLE, JR., EXECUTOR OF THE ESTATE OF JESSIE MAE V. HARRISON, ROBERT A. PARKER and MARGARET LEE PARKER", "name_abbreviation": "Rawls v. Rideout", "decision_date": "1985-05-07", "docket_number": "No. 846SC295", "first_page": "368", "last_page": "377", "citations": [ { "type": "official", "cite": "74 N.C. App. 368" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "39 N.C. L. Rev. 1", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1960, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "30 A.L.R. 2d 393", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1953, "pin_cites": [ { "page": "435-442" } ], "opinion_index": 0 }, { "cite": "27 N.E. 2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "282 N.Y. 462", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2039827 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/ny/282/0462-01" ] }, { "cite": "37 N.C. (2 Ired. Eq.) 72", "category": "reporters:state", "reporter": "N.C.", "year": 1841, "pin_cites": [ { "parenthetical": "both decided under earlier statutes" } ], "opinion_index": 0 }, { "cite": "114 S.E. 482", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1922, "opinion_index": 0 }, { "cite": "184 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270558 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/184/0375-01" ] }, { "cite": "143 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "265 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574956 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0218-01" ] }, { "cite": "224 S.E. 2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "618" } ], "opinion_index": 0 }, { "cite": "290 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560188 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0075-01" ] }, { "cite": "79 S.E. 2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "parenthetical": "\"When the sense of the phrase or clause . . . manifestly requires it\"" } ], "opinion_index": 0 }, { "cite": "239 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626580 ], "year": 1954, "pin_cites": [ { "parenthetical": "\"When the sense of the phrase or clause . . . manifestly requires it\"" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0284-01" ] }, { "cite": "108 S.E. 2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "250 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622716 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/250/0315-01" ] }, { "cite": "132 S.E. 2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575006 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0416-01" ] }, { "cite": "106 S.E. 501", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "181 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655500 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nc/181/0158-01" ] }, { "cite": "156 S.E. 2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563720 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0307-01" ] }, { "cite": "186 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653305 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/186/0221-01" ] }, { "cite": "152 S.E. 388", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "parenthetical": "\"those who are heirs are therefore necessarily nearest heirs\"" } ], "opinion_index": 0 }, { "cite": "198 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613038 ], "year": 1930, "pin_cites": [ { "parenthetical": "\"those who are heirs are therefore necessarily nearest heirs\"" } ], "opinion_index": 0, "case_paths": [ "/nc/198/0503-01" ] }, { "cite": "47 S.E. 2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1948, "pin_cites": [ { "page": "704" } ], "opinion_index": 0 }, { "cite": "229 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12164882 ], "weight": 2, "year": 1948, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0120-01" ] }, { "cite": "5 A.L.R. 3d 715", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "year": 1966, "opinion_index": 0 }, { "cite": "189 S.E. 191", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1937, "pin_cites": [ { "parenthetical": "decided under repealed statutes" } ], "opinion_index": 0 }, { "cite": "211 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624190 ], "weight": 2, "year": 1937, "pin_cites": [ { "parenthetical": "decided under repealed statutes" } ], "opinion_index": 0, "case_paths": [ "/nc/211/0084-01" ] }, { "cite": "117 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626129 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0515-01" ] }, { "cite": "294 S.E. 2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571740 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0550-01" ] } ], "analysis": { "cardinality": 879, "char_count": 20846, "ocr_confidence": 0.811, "pagerank": { "raw": 1.6125915654958972e-07, "percentile": 0.6858461632319104 }, "sha256": "5e42449cb331a13a001c55c65ae8e820f12543565e5a8c5154d55ab2627c6c62", "simhash": "1:95544076f4a560d6", "word_count": 3472 }, "last_updated": "2023-07-14T16:43:43.207286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Wells concur." ], "parties": [ "LOIS RAWLS, ELLA V. JOYNER, GEORGE N. VAUGHAN, FANNIE LEE HASSETT, BLANCHE V. WHITEHEAD, J. T. VAUGHAN and CHARLES N. VAUGHAN v. ALMA RUTH V. RIDEOUT, J. GUY REVELLE, JR., EXECUTOR OF THE ESTATE OF JESSIE MAE V. HARRISON, ROBERT A. PARKER and MARGARET LEE PARKER" ], "opinions": [ { "text": "BECTON, Judge.\nThis declaratory judgment action involves the construction of the phrase \u201cto my nearest (relatives) heirs\u201d in the remainder clause of a devise, a determination of the class closing date, and a distribution of the shares under the Intestate Succession Act scheme. The parties are the nieces, nephews, and grandnephews of the testatrix.\nOn 1 July 1982 the plaintiffs, the five remaining children and the two grandchildren of Brownie Irene Vaughan Liverman\u2019s only brother, Roy Vaughan (deceased 1958), petitioned the trial court to construe the provisions of Mrs. Liverman\u2019s will. The defendants in this declaratory judgment action are the children of Mrs. Liverman\u2019s two sisters, Sally Vaughan Parker (deceased 1949) and Hattie Bell Vaughan (deceased 1965). Mrs. Liverman died testate on 22 May 1962. She had executed her will on 25 November 1939. Apparently, she and her husband, Therrell Liverman, had no children. Under the terms of her will, her husband, Therrell Liverman, received a life estate in the \u201chouse and tract of land\u201d on which Mrs. Liverman had lived and in all the \u201chousehold and kitchen furniture\u201d she owned. Therrell Liverman died on 10 September 1980. The contested remainder interest in the second clause of the will is underlined below:\nSecond, I give and devise to my beloved husband, Ther-rell Liverman, the house and tract of land on which I now reside, and all household and kitchen furniture which I now own are [sic] may own at the time of my death, for his natural life and then said property shall pass to my nearest (relatives) heirs.\nAfter a bench trial, the trial court concluded that the plaintiffs and the defendants, Mrs. Liverman\u2019s nieces, nephews and two grandnephews, were \u201cthe owners of the house and tract of land . . . per stirpes, and the proceeds derived from the sale of said land should be divided per stirpes.\u201d The parties had agreed to sell the devised property and to hold the proceeds in trust awaiting the court-ordered disposition.\nThe plaintiffs appeal from the per stirpes distribution. We vacate and remand.\nI\nIn construing the provisions of a will, the court is guided by the intent of the testatrix, as expressed in her will. Wachovia Bank & Trust Co. v. Livengood, 306 N.C. 550, 294 S.E. 2d 319 (1982). Ordinary words are to be given their ordinary meaning and technical words are presumed to have been used in a technical sense. Clark v. Connor, 253 N.C. 515, 117 S.E. 2d 465 (1960).\nThe word \u201cheirs\u201d has a long-established technical meaning. \u201c \u2018An heir, therefore, is he upon whom the law of inheritance casts the estate immediately on the death of the ancestor.\u2019 \u201d 4 W. Bowe & D. Parker, Page on the Law of Wills Sec. 34.4, at 407 (rev. ed. 1961) (quoting 1 W. Blackstone, Commentaries *201). In other words, \u201cheirs\u201d were generally the persons entitled to take under the intestacy laws. Since the repeal of the former intestacy laws, the Rules of Descent, N.C. Gen. Stat. Chap. 29 (1950), and the statute of Distribution, N.C. Gen. Stat. Sec. 28-149 (1950), and the enactment of the Intestate Succession Act (the Act), as codified at N.C. Gen. Stat. Chap. 29 (1984), an \u201cheir\u201d is technically defined as \u201cany person entitled to take real or personal property upon intestacy\u201d under the Act. G.S. Sec. 29-2(4) (1984); 1 N. Wiggins, Wills and Administration of Estates in North Carolina Sec. 134, at 241 (2d ed. 1983); see 4 Bowe & Parker, supra, at 409. The Act became effective 1 July 1960 and applies to estates of persons dying on or after that date. 1959 N.C. Sess. Laws Ch. 879 Sec. 15. Thus, absent words expressing the testatrix\u2019 contrary intent, the court will construe the word \u201cheirs\u201d in a will in the technical sense. 1 Wiggins, supra; Stephens v. Clark, 211 N.C. 84, 189 S.E. 191 (1937) (decided under repealed statutes); 3 Restatement of the Law of Property Sec. 305 (1940).\n\u201cRelatives,\u201d when used in a will, has two alternative technical meanings, absent evidence of the testatrix\u2019 intent to have the popular meaning govern. Annot., 5 A.L.R. 3d 715 (1966). \u201cRelatives,\u201d in the popular sense, refers to all those persons related by consanguinity or affinity. 4 Bowe & Parker, supra, Sec. 34.25. When used in a will, \u201crelatives\u201d generally means either all those persons related by consanguinity or, more frequently, the narrower class of relatives entitled to take as heirs under the intestacy statutes, excluding the husband or wife. 1 Wiggins, supra, Sec. 134; 4 Bowe & Parker, supra, Sec. 34.25; Annot., 5 A.L.R. 3d 715 (1966).\nIn the case sub judice, the word \u201cnearest\u201d precedes both \u201crelatives\u201d and \u201cheirs\u201d in the remainder clause. We must decide whether the presence of \u201cnearest\u201d reveals the testatrix\u2019 intent to circumvent the technical meanings of \u201crelatives\u201d and \u201cheirs.\u201d We conclude that it does not.\nFrom the common law it is clear that the phrase \u201cnearest heirs\u201d is itself a technical phrase synonymous with \u201cheirs.\u201d Ratley v. Oliver, 229 N.C. 120, 47 S.E. 2d 703 (1948). The Ratley Court restated the long-standing principle that \u201cthe words \u2018nearest heirs,\u2019 standing alone, should be understood in their technical sense as denoting an indefinite succession of lineal descendants who are to take by inheritance. . . .\u201d 229 N.C. at 121, 47 S.E. 2d at 704. See also Cox v. Heath, 198 N.C. 503, 152 S.E. 388 (1930) (\u201cthose who are heirs are therefore necessarily nearest heirs\u201d).\nIn Fields v. Rollins, 186 N.C. 221 (1923), our Supreme Court held that \u201cnearest relatives\u201d is likewise a synonym for the technical phrase \u201cnext of kin.\u201d Under the common law, the phrase \u201cnext of kin\u201d in a will has a narrower technical meaning than \u201cheirs\u201d or \u201cnearest heirs.\u201d Instead, it signifies the extremely limited class of the nearest blood relations, thereby excluding those persons related by marriage and prohibiting the principle of representation, unless there is evidence in the will of the testatrix\u2019 intent to avoid the technical meaning. In re Cobb, 271 N.C. 307, 156 S.E. 2d 285 (1967); Wallace v. Wallace, 181 N.C. 158, 106 S.E. 501 (1921); 4 Bowe & Parker, supra, Sec. 34.25. In enacting N.C. Gen. Stat. Sec. 41-6.1 in 1967, the Legislature made \u201cnext of kin\u201d synonymous with \u201cheirs.\u201d G.S. Sec. 41-6.1 (1984) reads: \u201cA limitation by deed, will, or other writing, to the \u2018next of kin\u2019 of any person shall be construed to be to those persons who would take under the law of intestate succession. . . .\u201d (Effective 27 June 1967.) We note, though, that a will takes effect and speaks as of the testatrix\u2019 death. Wachovia Bank & Trust Co. v. McKee, 260 N.C. 416, 132 S.E. 2d 762 (1963). Mrs. Liverman died 22 May 1962. Therefore, at the time of her death, \u201cnext of kin\u201d and, by implication, \u201cnearest relatives,\u201d still retained their very narrow technical common-law meaning.\nFrom the above analysis, we conclude that the word \u201cnearest\u201d in the remainder clause at hand is only an additional element of technical language, rather than a signal of Mrs. Liverman\u2019s contrary intent. Having explored the varying technical meanings of \u201cnearest heirs\u201d and \u201cnearest relatives\u201d in effect at the time Mrs. Liverman\u2019s will took effect, we must next determine which phrase controls.\nIn Mrs. Liverman\u2019s will, \u201crelatives\u201d appears in parentheses between \u201cnearest\u201d and \u201cheirs.\u201d This Court has the discretion to transpose words, phrases or clauses and to supply or disregard punctuation to effectuate the intent of the testatrix. Entwistle v. Covington, 250 N.C. 315, 108 S.E. 2d 603 (1959); Mewborn v. Mewborn, 239 N.C. 284, 79 S.E. 2d 398 (1954) (\u201cWhen the sense of the phrase or clause . . . manifestly requires it\u201d). According to commonly-accepted rules of punctuation, parentheses are used to set off supplementary or illustrative material; they \u201ctend to minimize the importance of the elements they enclose.\u201d J. Hodges & M. Whitten, Harbrace College Handbook 162 (7th ed. 1977). Thus, the word \u201crelatives\u201d is minimized by its enclosure in parentheses. We therefore are persuaded that \u201cnearest heirs\u201d is the controlling phrase. For greater clarity, we transpose \u201c(relatives)\u201d and \u201cheirs.\u201d \u201c([Relatives)\u201d modifies \u201cnearest heirs\u201d; the segment should read \u201cnearest heirs (relatives).\u201d Moreover, the words are to be given their technical meanings.\nWe believe that our transposition of Mrs. Liverman\u2019s words effectuates her intent to leave a remainder interest to her heirs, while excluding her life-tenant husband, Therrell, a non-relative, from the class of remaindermen, for the reasons discussed in II, infra.\nII\nOur courts have long since adopted the general rule of testamentary construction that a remainder interest to a class described as the testatrix\u2019 \u201cheirs,\u201d \u201cnext of kin,\u201d or other relatives vests immediately upon the testatrix\u2019 death and the class is to be fixed and determined at that time. White v. Alexander, 290 N.C. 75, 224 S.E. 2d 617 (1976); Central Carolina Bank & Trust Co. v. Bass, 265 N.C. 218, 143 S.E. 2d 689 (1965); Witty v. Witty, 184 N.C. 375, 114 S.E. 482 (1922). However, the intent of the testatrix, as expressed in the will, remains the cardinal principle of will constructions. Id.\nAs discussed in I, the testatrix\u2019 \u201cnearest heirs\u201d consist of those persons entitled to take upon her intestacy. In construing a will with a remainder interest to a class of the testatrix\u2019 \u201cheirs,\u201d our courts look to the intestacy laws in effect at the testatrix\u2019 death to determine who the \u201cheirs\u201d are and, equally important, the shares they are entitled to take, unless the language of the will reveals a contrary intent. Stephens v. Clark, 211 N.C. 84, 189 S.E. 191 (1937); Freeman v. Knight, 37 N.C. (2 Ired. Eq.) 72 (1841) (both decided under earlier statutes); 1 Wiggins, supra, Sec. 134; Wachovia Bank & Trust Co. v. McKee; see also L. Simes & A. Smith, The Law of Future Interests Sec. 747 (2d ed. 1956); Restatement, supra, Secs. 305 and 310; In re Koch, 282 N.Y. 462, 27 N.E. 2d 10 (1940); 80 Am. Jur. 2d Wills Sec. 1422 (1975). At the time of Mrs. Liverman\u2019s death, the Intestate Succession Act had already become effective.\nUnder the Act, the \u201csurviving spouse\u201d is an \u201cheir,\u201d and if the couple was childless, the \u201csurviving spouse\u201d is the sole \u201cheir,\u201d taking all the real and personal property. G.S. Secs. 29-2 and -14 (1984). Thus, at the time of Mrs. Liverman\u2019s death, her husband, Therrell, was her sole \u201cheir.\u201d Applying the general rule of testamentary construction, Mr. Liverman apparently receives both the life estate and the remainder. In Central Carolina Bank & Trust Co. v. Bass, the court reviewed the various approaches taken by other jurisdictions when faced with a life tenant being the sole re-mainderman at the death of the testatrix:\n1) the will created a vested remainder subject to the life estate, but excluding the life tenant, ... 2) the will created a vested remainder, the remaindermen being determined at the testat[rix]\u2019 death, with no exclusion of the life tenant, and the mere circumstance that the devisee of the precedent estate is the sole heir is not sufficient to show that the testatfrix] intended heirs or next of kin to be ascertained at any time other than [her] death, ... 3) the will created a contingent remainder in those who answered the roll call at the death of the life tenant. . . .\n265 N.C. 218, 241, 143 S.E. 2d 689, 705 (citations omitted). See also Simes & Smith, supra, Sec. 735; Restatement, supra, Sec. 308 comment K; Annot., 30 A.L.R. 2d 393, 435-442 (1953).\nThe testator in Bass had set up a complex testamentary trust. The testator\u2019s son, an alcoholic, was to receive the income for life and whatever percentage of the principal the trustee in its discretion saw fit to invade. At the son\u2019s death, the principal was to be distributed to the testator\u2019s next of kin. The Court concluded that the testator, by providing so well for his son, did not intend to include him in the class of his next of kin. Moreover, since next of kin signifies nearest of kin, and the son was the testator\u2019s sole nearest of kin during his lifetime, the Court concluded that the class of next of kin, excluding the son, could only be ascertained as if the testator had died immediately after his son. Thus, the class closing was postponed until the life tenant\u2019s death.\nSimilarly, we conclude that the testatrix intended to exclude her husband from the class of her heirs. However, we do not base our decision on the adequacy of the life estate alone, but rather on the testatrix\u2019 express intent. The remainder was devised \u201cto my nearest heirs (relatives).\u201d As we noted earlier, in its technical sense, \u201crelatives\u201d either refers to those persons related by consanguinity or those persons entitled to take under the Intestate Succession Act, excluding the husband or wife. Mr. Liverman is not a \u201crelative\u201d in the technical sense. By modifying \u201cnearest heirs\u201d with \u201c(relatives),\u201d the testatrix intended to exclude her husband from taking as a remainderman.\nWe are not faced with a devise to the testatrix\u2019 next of kin as was the case in Bass. In White v. Alexander, Justice Exum construed the provisions of a will devising a life estate to the testatrix\u2019 son\nand if he shall die without heirs of his body, then it is my will and devise, and I hereby direct that at the death of my son, without heirs, if his wife, Emma Stokes, shall be living that she shall use and enjoy the said land during her widowhood, and at her death or remarriage, the same shall go to my heirs.\n290 N.C. at 76, 224 S.E. 2d at 618. The Court held that the son\u2019s interest was limited to a life estate; the testatrix impliedly intended her son\u2019s children to take a vested remainder. The testatrix\u2019 heirs received a contingent remainder. In distinguishing Bass, the White Court focused on the existence of other heirs besides the son at the testatrix\u2019 death, before concluding that the class of heirs taking the contingent remainder was to be ascertained at the testatrix\u2019 death. As in White v. Alexander, if we exclude Mr. Liverman from the class of \u201cheirs,\u201d others step forward to qualify as heirs at Mrs. Liverman\u2019s death: her sister, Hattie Belle Vaughan and the lineal descendants of her deceased sister, Sally Vaughan Parker and her deceased brother, Roy Vaughan, as discussed in III, infra. G.S. Sec. 29-15(4) and -16 (1984). The class of the testatrix\u2019 heirs can be ascertained at her death. Thus, we need not take the Bass Court\u2019s approach and postpone the class closing until the life tenant\u2019s death.\nConsequently, we hold that the testatrix intended to exclude her husband, Therrell, from the class of \u201cheirs\u201d taking a remainder interest, and further, we hold that the class was to be ascertained at the testatrix\u2019 death.\nHH hH HH\nWhen a gift is made to a class of \u201cheirs,\u201d the intestacy laws govern not only the identification of the \u201cheirs,\u201d but also the shares to which they are entitled. Freeman v. Knight; Simes & Smith, supra, Sec. 747; Restatement, supra, Sec. 310. The Act calls for a per capita distribution of the decedent\u2019s real and personal property to all surviving persons in the same degree of relationship to the decedent. McCall, North Carolina\u2019s New Intestate Succession Act, 39 N.C. L. Rev. 1, 12 (1960). The distribution scheme is commonly referred to as \u201cper capita at each generation.\u201d\nOnce we exclude Mr. Liverman from the class of the testatrix\u2019 heirs, we are left to divide her property among her remaining potential heirs \u2014 her sisters and brother or, depending on the dates of her siblings\u2019 deaths, their lineal descendants. G.S. Sec. 29-15(4) and -16(b) (1984). Their respective interests vested at the time of her death, 22 May 1962. At that time, only one sister, Hattie Belle Vaughan (deceased 1965), was still alive. Under G.S. Sec. 29-16(b)(l) (1984), Hattie Belle\u2019s share is calculated by dividing \u201cthe property by the number of surviving brothers and sisters plus the number of deceased brothers and sisters who have left lineal descendants surviving the [testatrix] within the fifth degree of kinship to the [testatrix].\u201d Mrs. Liverman, the testatrix, had three siblings: Hattie Belle, Roy, and Sally. Roy and Sally each had children alive at the testatrix\u2019 death. Therefore, the estate of Hattie Belle Vaughan receives a one-third share. G.S. Sec. 29-15(4) and -16(b) (1984). There is no evidence as to whether Hattie Belle Vaughan died testate or intestate in 1965. Her daughter, Alma Ruth V. Rideout and the estate of her other daughter, Jessie Mae V. Harrison (deceased 1982), receive nothing directly under the terms of Mrs. Liverman\u2019s will. Their shares, if any, are dependent on their status as heirs or devisees of their mother.\nThe remaining two-thirds of Mrs. Liverman\u2019s property is to be distributed among the next generation \u2014 the testatrix\u2019 nieces and nephews, the lineal descendants of her deceased brother and sister, who were alive at the time of her death. G.S. Sec. 29-16 (b)(2) (1984). Again, each surviving niece\u2019s or nephew\u2019s share is calculated by dividing the property \u201cby the number of such surviving nephews or nieces plus the number of deceased nephews and nieces who have left lineal descendants surviving the [testatrix] within the fifth degree of kinship to the [testatrix].\u201d G.S. Sec. 2946(b)(2) (1984). At the time of the testatrix\u2019 death all eight nieces and nephews by her deceased brother and sister were alive: Robert A. Parker, Margaret L. Parker, Ella V. Joyner, George N. Vaughan, Fannie Lee Hassett, Blanche V. Whitehead, and Nellie B. Vaughan (deceased between 1966 and 1980). Each niece or nephew or his or her estate, if since deceased, is entitled to one-eighth of the two-thirds remaining, a one-twelfth share. Again, the record does not reflect whether Nellie B. Vaughan died testate or intestate. As with Hattie Belle\u2019s children, Nellie B. Vaughan\u2019s two children, the testatrix\u2019 grandnephews, J. T. Vaughan and Charles N. Vaughan, do not take a share directly under Mrs. Liverman\u2019s will. They can only share as heirs or devisees of their mother.\nThe trial court erred in making a per stirpes distribution to all of Mrs. Liverman\u2019s nieces and nephews, as well as her two grandnephews. The order is vacated, and the case is remanded for the entry of an order consistent with this decision.\nVacated and remanded.\nJudges Arnold and Wells concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Perry W. Martin and Donnie R. Taylor for plaintiff appellants.", "Revelle, Burleson, Lee & Revelle, by L. Frank Burleson, Jr., for defendant appellee J. Guy Revelle, Jr., Executor of the Estate of Jessie Mae V. Harrison.", "Cherry, Cherry, Flythe and Overton, by Thomas L. Cherry, Larry S. Overton and Ernest Rawls Carter, Jr., for defendant ap-pellees Alma Ruth Rideout, Robert A. Parker, and Margaret Lee Parker." ], "corrections": "", "head_matter": "LOIS RAWLS, ELLA V. JOYNER, GEORGE N. VAUGHAN, FANNIE LEE HASSETT, BLANCHE V. WHITEHEAD, J. T. VAUGHAN and CHARLES N. VAUGHAN v. ALMA RUTH V. RIDEOUT, J. GUY REVELLE, JR., EXECUTOR OF THE ESTATE OF JESSIE MAE V. HARRISON, ROBERT A. PARKER and MARGARET LEE PARKER\nNo. 846SC295\n(Filed 7 May 1985)\n1. Wills \u00a7 43\u2014 heirs and relatives distinguished\nThe court will construe the words \u201cheirs\u201d and \u201crelatives\u201d in a will in the technical sense, absent evidence of the testatrix\u2019s contrary intent. \u201cHeirs\u201d are people entitled to take under the Intestate Succession Act, while \u201crelatives\u201d means either all those persons related by consanguinity or the class of relatives entitled to take under the intestacy statutes, excluding the husband or wife. G.S. 29-2(4) (1984).\n2. Wills \u00a7 43\u2014 devise to nearest (relatives) heirs \u2014construed as nearest heirs with husband excluded\nThe phrase \u201c. . . nearest (relatives) heirs\u201d in a will left a remainder interest to the testatrix\u2019s heirs with her life tenant husband excluded. \u201cNearest heirs\u201d is the controlling phrase because \u201crelatives\u201d is minimized by its enclosure in parentheses; however, \u201crelatives\u201d does exclude her husband because it refers either to those-persons related by consanguinity or to those entitled to take under the Intestate Succession Act, excluding the husband or wife. G.S. 41-6.1 (1984), G.S. 29-2 and -14 (1984), G.S. 29-15(4) and -16 (1984).\n3. Wills 8 44\u2014 per stirpes distribution erroneous\nA remainder interest in a testatrix\u2019s estate was to be distributed to the estates of her sisters and brother or to her nieces or nephews where the will left a lifetime interest to her husband and the remainder to \u201c. . . my nearest (relatives) heirs.\u201d The estate of the one sister living at the time of the testatrix\u2019s death receives one-third of the remainder interest. Each child of the other sister and brother who were alive at the time of the testatrix\u2019s death, or their estates, would receive one-eighth of the two-thirds remainder, or a one-twelfth interest. G.S. 29-15(4) and -16(b) (1984).\nAPPEAL by plaintiffs from Brown, Judge. Order entered 20 December 1983 in Superior Court, HERTFORD County. Heard in the Court of Appeals 27 November 1984.\nPerry W. Martin and Donnie R. Taylor for plaintiff appellants.\nRevelle, Burleson, Lee & Revelle, by L. Frank Burleson, Jr., for defendant appellee J. Guy Revelle, Jr., Executor of the Estate of Jessie Mae V. Harrison.\nCherry, Cherry, Flythe and Overton, by Thomas L. Cherry, Larry S. Overton and Ernest Rawls Carter, Jr., for defendant ap-pellees Alma Ruth Rideout, Robert A. Parker, and Margaret Lee Parker." }, "file_name": "0368-01", "first_page_order": 400, "last_page_order": 409 }