{
  "id": 8629526,
  "name": "BERTHA TURNER, Administratrix, et al. v. ALLEN TURNER et al.",
  "name_abbreviation": "Turner v. Turner",
  "decision_date": "1928-03-28",
  "docket_number": "",
  "first_page": "371",
  "last_page": "373",
  "citations": [
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      "type": "official",
      "cite": "195 N.C. 371"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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    {
      "cite": "185 N. C., 38",
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      "reporter": "N.C.",
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      "category": "reporters:state_regional",
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      "opinion_index": 0
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    {
      "cite": "175 N. C., 160",
      "category": "reporters:state",
      "reporter": "N.C.",
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        "/nc/175/0160-01"
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  "last_updated": "2023-07-14T20:22:12.241767+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "BERTHA TURNER, Administratrix, et al. v. ALLEN TURNER et al."
    ],
    "opinions": [
      {
        "text": "Stacy, O. J.\nThe parties to the present proceeding, having a question in difference which might properly become the subject of a civil action, have submitted the same for determination without action, upon an agreed statement of facts, as authorized by C. S., 626.\nThe question to be determined is whether the children of a second marriage share with the children of their father by a prior marriage, as tenants in common, in real property acquired during the first marriage under a deed conveying said property to the father and his then present wife, naming her, \u201cduring the term of their natural lives and after the death of each and both of them then to their children in fee simple.\u201d\nThe trial court was of the opinion, and so held, that, under the decision in Williams v. Williams, 175 N. C., 160, 95 S. E., 157, the children of the first marriage alone were entitled, as remaindermen, to the land acquired under this deed. In this we find no error.\nThe words \u201ctheir children\u201d may be used in an inclusive sense to designate the children of the husband and wife and the children of either, and in an exclusive sense to designate the children of the husband and his then present wife or of the wife and her then present husband. Neither law nor common usage has affixed such unvarying meaning to the word \u201ctheir\u201d as to prevent its appropriate use for either purpose. Hence, in determining the sense in which such words are used in a contract, will or deed, regard must be had to the circumstances, and the intent of the parties, as well as to the subject-matter. Lehman v. Lehman, 215 P. A., 344. In the instant case we think the words \u201ctheir children\u201d were used in an exclusive sense, meaning simply the children of Alfred Turner and his then present wife, Minerva Turner.\nThe principles announced in Roberson v. Griffin, 185 N. C., 38, 115 S. E., 824, are not applicable to the facts of the present record.\nIt follows from what is said above that the judgment of the Superior Court, is correct.\nAffirmed.",
        "type": "majority",
        "author": "Stacy, O. J."
      }
    ],
    "attorneys": [
      "George L. Grantham and J ohnson, J ohnson & Floyd for plaintiffs.",
      "F. J. Britt and Varser, Lawrence, Proctor & McIntyre for defendants."
    ],
    "corrections": "",
    "head_matter": "BERTHA TURNER, Administratrix, et al. v. ALLEN TURNER et al.\n(Filed 28 March, 1928.)\n1. Deeds and Conveyances \u2014 Construction and Operation \u2014 Estates and Interests Created.\nA deed of land to a man and Ms wife by name, during the terms of their natural lives \u201cand after the death of both of them, then to their children in fee simple,\u201d confines the takers under the limitation to the children of that marriage and excludes the children of the husband of a second marriage after the death of his first wife.\n2. Deeds and Conveyances \u2014 Construction and Operation \u2014 General Rules of Construction.\nThe limitation over by deed may be construed, as in the present case, to effectuate the grantor\u2019s intent taken with regard to the circumstances surrounding him at the time of the conveyance, and the subject-matter thereof.\nAppeal by plaintiffs from Devin, J., at February Term, 1928, of ROBESON.\nControversy without action submitted on an agreed statement of facts, which, so far as essential to a proper understanding of the legal questions involved, may be abridged and stated as follows:\nOn 13 October, 1902, a tract of land, the locus in quo, was duly conveyed \u201cto Alfred Turner and wife, Minerva Turner, during the term of their natural lives and after the death of each and both of them then to their children in fee simple.\u201d\nOn said date Alfred Turner and wife, Minerva Turner, had seven children, defendants herein. No other child was born to this union.\nAfter the death of Minerva Turner, Alfred Turner intermarried with Bertha Turner, and to this union three children were born, who, with their mother, are plaintiffs herein. Alfred Turner died intestate 8 April, 1927.\nIt is the contention of the plaintiffs, children of the second marriage, that they share with the defendants, children of the first marriage, as tenants in common, in the land acquired under the deed aforementioned and owned by Alfred Turner at the time of his death.\nFrom a judgment in favor of defendants, the plaintiffs appeal, assigning errors.\nGeorge L. Grantham and J ohnson, J ohnson & Floyd for plaintiffs.\nF. J. Britt and Varser, Lawrence, Proctor & McIntyre for defendants."
  },
  "file_name": "0371-01",
  "first_page_order": 443,
  "last_page_order": 445
}