## Facts

- A testatrix owned farm property in Randolph County, North Carolina and devised it by will.
- The will granted Roger Canoy a life estate in the farm, with the remainder stated to pass “at his death, in ten (10) equal shares to my ten children, and for any that are deceased, to their issue, if any, per stirpes.”
- The testatrix had ten children, including Roger.
- All ten children survived the testatrix.
- Roger filed a declaratory judgment action seeking construction of the will and a declaration of interests in the farm.
- The trial court concluded that the remainder takers would be the testatrix’s children who survive Roger, or the issue of any sibling who predeceases Roger.

## Issues

1. Whether the will created vested remainder interests in all ten children at the testatrix’s death, or instead created remainder interests conditioned on each child surviving the life tenant.
2. Whether the phrase providing that “for any that are deceased, [the share goes] to their issue” refers to a child deceased at the testatrix’s death or deceased at the life tenant’s death.

## Decision

- The appellate court affirmed the trial court’s construction.
- The court held that each child’s ability to take a one-tenth share personally depended on surviving Roger.
- If a child did not survive Roger, that child’s share passes to the child’s issue per stirpes.
- The court reasoned that the will’s distribution scheme is tied to the time of Roger’s death and includes an alternative gift keyed to that same time.

## Legal Principles

- A will is construed to effectuate the testator’s intent as expressed in the instrument read as a whole.
- A remainder is contingent when the identity of the takers, or their right to take, depends on a future event (including survival to a stated time).
- Language that distributes property “at [the life tenant’s] death” and provides a substitute gift for those “that are deceased” is commonly construed to impose a survival condition measured at the life tenant’s death.
- Even if characterized as a vested remainder subject to divestment, a survival condition can fully defeat a child’s share in favor of the child’s issue when the condition is not satisfied.

## Conclusion

The court enforced the will’s timing and substitution language by holding that the remainder interests were conditioned on a child surviving the life tenant; otherwise, the deceased child’s issue takes that share per stirpes, and Roger holds only a life estate.


Canoy v. Canoy, 135 N.C. App. 326, 520 S.E.2d 128 (N.C. Ct. App. 1999)