Royal v. . Moore , 187 N.C. 379 ( 1924 )

Clark, C. J.

The appellee contends that item 2 is in reality part of item 1 and was added after item 1, not for the purpose of enlarging the number of heirs so as to include all of the testator’s heirs as residuary legatees, but to limit the legacies theretofore given unto “such of my heirs as may be living at'the time of my death”; thus plainly showing an intention to limit the testator’s. bounty immediately to such of his brothers and sisters named as residuary legatees as might be living at the time of the testator’s'death. The death of any such residuary legatee prior to the death of the testator would have placed the children of such residuary legatee in the exact position in which the children of Catherine Faison and Sarah King now find themselves.

We think that this is tbe proper construction, and that, considering the first and second items of the will together as one paragraph, we have a plain, connected, unambiguous testamentary disposition of all the property owned' by the testator; and that the second clause of the will, thus construed, is simply a restatement of the first clause, and makes clearer and more definite'the residuary clause, which should read as if written, “I hereby devise and bequeath unto such of my heirs as may be living at the time of my death an equal share of whatever remain of my belongings

The contention of the defendant that the children of the deceased sisters are included as beneficiaries under the residuary clause would make that clause not an auxiliary construction of the residuary clause, but a repeal of it. If the testator had intended that the children of his deceased sisters should share, he would have said so, and would not have left such intention to be inserted by the strained construction contended for by the defendants. If the children of the deceased Catherine Faison and Sarah King are to take under section 2 of the residuary clause, they must take with the named beneficiaries, “share and share alike” — that is, per capita and not per stirpes; and to accept this construction would have the effect of giving to the five children of Sarah Royal King five times as much of the residuum, as the specially named beneficiaries under the will receive. This is not a reasonable construction, and we think that the judgment of his Honor was correct.

The court properly held that the insurance policies were part of the residuum; and Anna Warren and Martha Royal having elected to take as beneficiaries under said policies, and not under the will, and the pecuniary legacies having been paid to the parties named, the residue was properly directed to be divided between Senia Herring, Neal Royal, Jane Weeks, and Luther Royal.

Affirmed.