Boylan v. . Boylan , 62 N.C. 160 ( 1867 )

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. The only question presented in this case has been already settled by this court in Mordecai v. Boylan, 59 N.C. 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 (161) between children and grandchildren, the division of the residue of his estate directed to be made among "his children" can not 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 ``children' in its proper, actual meaning, but in a more extensive sense." 1 Roper 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.

Cited: Lee v. Baird, 132 N.C. 760.