{
  "id": 11254641,
  "name": "M. D. TAYLOR et al. v. H. CLAY TAYLOR et al.",
  "name_abbreviation": "Taylor v. Taylor",
  "decision_date": "1917-11-14",
  "docket_number": "",
  "first_page": "537",
  "last_page": "540",
  "citations": [
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      "cite": "174 N.C. 537"
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  "court": {
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "159 N. C., 158",
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    {
      "cite": "132 N. C., 755",
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  "last_updated": "2023-07-14T18:13:24.898604+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "M. D. TAYLOR et al. v. H. CLAY TAYLOR et al."
    ],
    "opinions": [
      {
        "text": "Allen, J.\nIt is true, as contended by the petitioners, that a devise to children does not include grandchildren (Lee v. Baird, 132 N. C., 755), and that when tbe devise is to survivors after a life estate, tbe time-usually adopted for determining wbo comes witbin tbe class is tbe death of tbe life tenant, and not tbe death of tbe testator (Bradshaw v. Stansberry, 164 N. C., 356), but these are not principles'of substantive law, but rules of interpretation, which should be resorted to to ascertain the intention of tbe testator, and not to defeat it. Crossley v. Leslie, 14 Anno Cases, 706.\nIt is also competent, in construing a will, \u201cto consider tbe condition of tbe testator and bis family and all tbe attendant circumstances\u201d (Ripley v. Armstrong, 159 N. C., 158), and tbe law favors a construction which gives to tbe devisee a vested interest as early as possible, and not a contingent interest, \u201cto tbe end that property may be kept in tbe channels of commerce.\u201d Dunn v. Hines, 164 N. C., 120.\nTbe law, also, if possible, adopts the just, natural, and reasonable rule of an equal distribution among children (40 Cyc., 1411), and if words are used in one part of the will in a certain sense, the same meaning is to be given to them when repeated in other parts of the will, unless a contrary intent appears. \u201cIt is a well-settled rule of testamentary construction that if it is apparent that in one use of a word or phrase a particular significance is attached thereto by the testator, the same meaning will be presumed to be intended in all other instances of the use by him of the same word or phrase.\u201d Raskrow v. Jewell, Ann. Cases, 1914b, 64; Gibson v. Gibson, 49 N. C., 425; Lockhart v. Lockhart, 56 N. C., 205.\nApplying these principles, we are of opinion that tbe term, \u201cliving-children,\u201d includes all the children living at tbe death of tbe testator.\nTbe testator bad thirteen children, one of whom predeceased him, leaving children, and twelve of whom survived him.\nThere was some reason for excluding tbe one child and bis descendants from participation in tbe estate, because be bad married against the-wishes of tbe testator, but tbe other twelve stood upon equal terms, and tbe testator declares bis purpose to make \u201ca just and equitable disposition\u201d of bis property. But he did intend, if all died before tbe death of tbe life tenant, that be should be intestate as to bis whole estate, except as to tbe devise for life or widowhood, or, if all died except one, leaving children, that tbe sole survivor should take tbe whole estate.\nTo so hold would not only be inequitable in opposition to tbe declared purpose to make an equitable disposition of bis property, but it would also run counter to tbe presumption against intestacy, and still this is a necessary conclusion if tbe position of tbe petitioner can be maintained.\nTbe testator has, however, put tbe matter at rest by giving to \u201cliving children\u201d a definite meaning, and has, as some of tbe authorities express it, become a dictionary for himself. He devised a part of bis property to bis wife for life, and tbe balance to bis living children.\nSuppose there had been no life estate, and the devise had been of the whole estate to my \u201cliving children,\u201d clearly the children living at the death of the testator would take, and if so, the part of the estate not devised to the wife for life would pass to the same person.\nWe have, then, in item 3 a devise of that part of the estate not given to his wife for life to his twelve children who survived him as \u201cmy living children,\u201d and the same meaning must be given to the same language in item 4, as no contrary intent appears, because the testator has said what he means by \u201cmy living children.\u201d\nThe reference to the expiration of the wife\u2019s interest in the last item is simply intended to fix the time for the division of the land devised to her for life.\nAffirmed.",
        "type": "majority",
        "author": "Allen, J."
      }
    ],
    "attorneys": [
      "Clifford Frazier for plaintiffs.",
      "Charles A. Bines and C. R. Wharton for defendants."
    ],
    "corrections": "",
    "head_matter": "M. D. TAYLOR et al. v. H. CLAY TAYLOR et al.\n(Filed 14 November, 1917.)\n1. Wills \u2014 Devises\u2014\u201cChildren\u201d\u2014Estates for Life \u2014 Rules of Construction\u2014 Intent.\nA devise of land to \u201cchildren\u201d does not include \u201cgrandchildren,\u201d and the principle ordinarily applicable to the construction of a devise to survivors after a life estate, that it is determined as of the death of the life tenant, and not the death of the testator, is but a rule of interpretation to ascertain the intent of the testator, and will not be permitted to defeat it when the intent otherwise appears by proper construction.\n2. Same \u2014 Existing Conditions \u2014 Early Vesting of Estates \u2014 Words Employed \u2014Interpretation.\nThe eondiion of the testator and his family, and all the attendant circumstances, may be considered when relevant in the interpretation of his will to ascertain his intent, the law favoring an early vesting of estates; and when words are used with a certain significance in one part of the will they will be construed in other parts thereof to have the same significance, unless a contrary intent appears. \u2019\n3. Same \u2014 \u201cMy Living Children.\u201d\nA testator who died leaving a wife and twelve children surviving devised certain of his lands to his wife for life, and \u201cat the expiration of my wife\u2019s interest in land and property, divide it equally among my living children\u201d ; and by another item, \u201cthe balance of my estate to be divided equally among my living children.\u201d He was predeceased by a son, who had married contrary to his wishes, of which marriage there are living children: Hel\u00e9, the intent of the testator, by the use of the words, \u201cmy living children,\u201d was to designate his own children who should survive him.\nAppeal by petitioners from Long, Jat June Term, 1917, of Guil-EORD.\nTbis is a proceeding to sell land for division.\nJobn B. Taylor was tbe owner of said land, and be died, leaving a lolograpbic will, wbicb bas been duly admitted to probate, and is as follows:\n\u201cI, John B. Taylor, of tbe county of Guilford and State of North Carolina, being at this time of sound and disposing mind and memory, but always mindful of tbe uncertainty of life, and being disposed of making a just and equitable disposition of my property, I have made this my last will and testament, in manner and form following:\n\u201cItem U I give and devise to my beloved wife, Mary J. Taylor, tbe tract of land on which I now live, for and during her widowhood, including two tracts bought of J. W. McMerry, together with all cattle and hogs, sheep, farming tools, household and kitchen furniture.\n\u201cItem 2. I give to my wife, Mary, the grain on the farm, with the horses and mules and wagons and harness, to have for her benefit.\n\u201cItem 3. I will that the balance of my estate be equally divided amongst my living children.\n\u201cItem 4. And at the expiration of my wife\u2019s interest on land and property, divide it equally among my living children.\n\u201cI hereby appoint my wife, Mary J. Taylor, my executrix to execute this my last will and testament.\n\u201cWhereof I have hereunto set my hand and seal, this the 17th day of July, 1885. JoiiN B. Tayloe.\u201d\nThe said John B. Taylor had thirteen children, one of whom died before said will was made, leaving children, and two of the surviving twelve died after the death of the said John B. Taylor and prior to the death of his wife, Mary J. Taylor, leaving children, and ten of them survived the said Mary J. Taylor.\nThe child who died prior to the making of the will married against the will of his father.\nThe ten surviving children are the petitioners, and the children of the two who died after the death of the testator are the defendants, they claiming as the heirs at law of the deceased children.\nThe said John B. Taylor left property other than that devised to his wife for life.\nThe petitioners contend that the words, \u201cmy living children,\u201d in the will mean children living at the death of the said Mary J. Taylor, and the defendants contend that these words mean children living at the death of the testator.\nHis Honor held with the defendants, and rendered judgment accordingly, and the plaintiffs excepted and appealed.\nClifford Frazier for plaintiffs.\nCharles A. Bines and C. R. Wharton for defendants."
  },
  "file_name": "0537-01",
  "first_page_order": 593,
  "last_page_order": 596
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