Stokes County NcArchives Court.....John Young Et Al, James W. Dicks Et Al V. 1921
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Source: North Carolina Report Spring Term
Written: 1921

James W. Dicks Et Al v. John Young Et Al

(Filed 11 May, 1921)

1. Wills-Interpretation-Intent-Changed Condition of Estate
The primary rule of interpretation is to ascertain from the language of the 
will, construed as a whole, the intention of the testator is disposing of his 
estate, and this intent controls without any supposition as to what he would 
have done with his property under changed conditions.

2. Wills-Interpretation-Intent-Ambiguity
Where, in expressing his intent, the testator uses in his will words that are 
free from ambiguity and doubt, no other meaning may be given than that 
plainly, clearly, and distinctly expressed by them.

3. Same-Survivorship-Children-Grandchildren-Estates-Contingent Limitations
A devise of lands to the testator's wife for life, and at her death to be 
equally divided among his four named children, "but if either of them shall 
die without leaving a child or children living at their death, then the 
portion of such child so dying shall go to the survivors of them and their 
heirs forever": Held, the words "survivors of them" refer to the survivor of 
the testator's own children, to the exclusion of grandchildren whose parents, 
named in the will, have previously died. Ham v. Ham, 168 NC 486, and other 
like cases cited and applied.

Appeal by defendants, heard on case agreed by Ray, J., 30 November, 1920, from 
Stokes.

This is a proceeding for partition of land tried on the following agreed facts:

1. That Williams H. Flynt, late of the county of Stokes, in the State of North 
Carolina, died on or about the [blank] day of [blank], 187-, leaving a last 
will and testament, which was duly admitted to probate in the county of Stokes 
on 27 January, 1877, and recorded in Will Book No. 6, p. 82, item 3 of which 
is as follows:

"I give, bequeath and devise unto my beloved wife, Minerva Flynt, all my real 
estate, consisting of the two above mentioned tracts of five hundred and fifty 
acres, more or less, and five hundred and thirty-two acres, more or less, 
including a tract of one hundred and twenty-six acres, more or less, known as 
the Hawkins tract; also two horses and wagon and farming utensils; to hold and 
to have absolute and full control of during her natural life and at her death 
to be equally divided between my four children, to wit: Margaret J. Dicks, 
William J. Flynt, James D. Flynt, and Walter M. Flynt, share and share alike; 
but if either of my children shall die without leaving a child or children 
living at their death, then and in that case it is my will and desire that the 
portions of such so dying as aforesaid shall go to the survivors of them and 
their heirs forever."

2. That Margaret J. Dicks, one of the children named in said will, died before 
her mother, Mrs. Minerva Flynt, the life devisee, and before any of the other 
children of said testator, leaving her surviving three children, the 
plaintiffs, James William Dicks, Lou Claudia Cates, and Minerva Lee Dicks.

3. That after the death of Mrs. Minerva Flynt, the life devisee, a partition 
of the lands set forth in said will was duly made between the surviving 
children of the testator, to wit: William J. Flynt, James L. Flynt, Walter M. 
Flynt, and the children of Margaret J. Dicks, deceased, to wit: James William 
Dicks, Lou Claudia Cates, and Minerva Lee Dicks, and one-fourth in value of 
said land assigned in said partition to the said children of Margaret J. 
Dicks, as representing their mother. That the tract of land described in the 
petition, containing 184 acres, was assigned in said partition to James L. 
Flynt, one of the children of William H. Flynt, named in said will.

4. That on 24 January, 1912, James L. Flynt and his wife conveyed by proper 
deed the 184 acres of land described in the petition to Walter M. Flynt and 
William J. Flynt, which deed is recorded in the register's office of Stokes 
County, in Book No. 56, p. 214; and thereafter, on 27 July, 1912, the said 
Walter M. Flynt and William J. Flynt, together with their wives, conveyed by 
proper deed with warranty the said 184 acres of land to R.M. Cardwell and J.H. 
Moore, which deed is recorded in the office of the register of deeds for 
Stokes County, in Book No. 56, p. 354.

5. That on 12 August, 1912, R.M. Cardwell and wife and J.H. Moore and wife 
conveyed by proper deed to the defendant John A. Young 80 acres, more or less, 
of the 184 acre tract of land set out in the petition herein, being the same 
tract described in the answer of John A. Young herein, and of which he claims 
sole seizin; that on 5 October, 1912, the said R.M. Cardwell and wife and J.H. 
Moore and wife conveyed by proper deed to one Hunter Manual 63 1/2 acres, more 
or less, of the 184 acre tract set out in the petition herein, being the same 
tract described in the answer of Roscoe Gann herein, of which he claims sole 
seizin through mesne conveyances from the said Hunter Manual; that on 23 
December, 1913, the said R.M. Cardwell and wife and J.H. Moore and wife 
conveyed by proper deed the remainder of the 184 acre tract of land described 
in the petition herein to the defendant J. Frank Dunlap, said remainder 
containing 47.75 acres more or less, and being the same tract of land set out 
in the answer of J. Frank Dunlap, of which he claims sole seizin.

6. That Walter M. Flynt, one of the children of William H. Flynt, named in the 
will of William H. Flynt, died before his brother James D. Flynt, leaving him 
surviving his children, the defendants Cary Flynt, Ethel Tilley, Ella Flynt 
and Hilary Flynt, and that after the death of the said Walter M. Flynt, James 
D. Flynt, one of the children of William H. Flynt, named in his will, died 
without issue, leaving him surviving his brother William J. Flynt, as the last 
survivor of the children of the testator, William H. Flynt, and also left him 
surviving the children of Walter M. Flynt and Margaret J. Dicks hereinbefore 
named.

7. That William J. Flynt and Cary Flynt disclaim any interest in the lands set 
forth in the petition herein, and the defendants John A. Young, J. Frank 
Dunlap, and Roscoe Gann claim sole seizin of their respective boundaries of 
said land, set forth in their respective answers, by mesne conveyances from 
William J. Flynt, the last survivor of the children of William H. Flynt, named 
in his last will and testament.

His Honor held and entered judgment accordingly that the plaintiffs, who are 
the children of Margaret, are entitled to one-third of the land, and the 
defendants excepted and appealed.

E.B. Jones and McMichael & Johnson for appellees
N.O. Petree and J.D. Humphreys for appelants

[NC Supreme Court]
Allen, J.
We are therefore of opinion his Honor was in error in holding that the 
children of Walter and Margaret take any part of the share of James under the 
will.
Reversed

[See court case for Judge Allen's complete findings]

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