Wills:  NC Court of Appeals Interprets Per Stirpes Testamentary Intent

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The North Carolina Court of Appeals demonstrated in September that use of the common law term per stirpes – commonly used to preserve a predeceased heir’s share in favor of their lineal descendants – must be carefully scribed to achieve such effect. The case – Brawley v. Sherrill, No. COA18-1043 (September 3, 2019) – illustrates the care drafters must use when applying the term per stirpes “by class” rather than named individuals to ensure that a predeceased potential heir’s share passes exclusively for that heir’s children. Because the case interpreted a nearly 50-year old will (executed in 1968), this case also serves as a reminder to individuals to periodically update their wills to the standards of modern practice and interpretive case law, particularly following the death of an intended heir.

The common law term per stirpes comes from the Latin “by root” or “by branch,” and when used in a will, the term is normally construed to apply the Testator’s intent that property rights in a share of an estate continue descend down through a predeceased named individual or member of a class identified as an heir by the decedent in his or her will. As such, a decision to divide one’s estate per stirpes among a group individuals described “by class” (as in “to my children” or naming each individually), signals that the Testator  intends that his or her estate be divided into equal shares according to the number of individuals in that class, alive or dead. The effect is that when a member of that class predeceases the Testator, the predeceased class member numerically factors into the division of estate, and his or her share continues to flow down his or her “branch” to his or her lineal heirs at law to be divided equally among them.

The effect of per stirpes is contrasted with the effect of the term per capita – Latin for “by the head” – which in Anglo-American common law has the effect of extinguishing a predeceased class member’s share as a factor in dividing the legacy into equal shares among a class. In other words, where a decedent had three children but one child died first, a bequest/devise “equally to my children, per stirpes” has the effect of dividing the estate into thirds (with the predeceased child’s share preserved for his or her surviving heirs and divided equally according to their number). On the other hand, a directive phrased “equally to my children, per capita”, would result in the estate being divided equally among two heirs instead of three (survivors of the predeceased heir receive nothing from this bequest/devise).

In Brawley, the decedent executed a will in 1968 that remained the testatrix’s sole valid testamentary document for half a century. In her will, the testatrix directed as follows:

ITEM I: I give devise and bequeath all of my estate and property . . . to my children, [two named children], if they are living at the time of my demise, to be theirs absolutely and in fee simple, share and share alike.

ITEM II: If either of my children shall predecease me, I direct that either his or her share shall go to my grandchildren, per stirpes.

One child had predeceased the testatrix, and that child was survived by one child (i.e. a grandchild of testatrix). The surviving child had two surviving children. Upon the death of the testatrix, the executrix of the estate – the surviving daughter with two children of her own – filed a declaratory judgement action in Iredell County Superior court to request an interpretation of the testatrix’s intent – as expressed in the language of the will (no other evidence appears to have been offered) – as to how her deceased brother’s share should be divided among testatrix’s grandchildren. The Iredell court held that the predeceased son’s share (half of the estate) should pass to his surviving son (Testatrix’s grandson). The result, then, would be ½ to Testatrix’s grandson by her deceased son, and ½ to her surviving daughter (with her two children receiving no share). One of the surviving daughter’s children filed the appeal.

In cases such as this – where there are no facts in dispute – the court looks solely to the language contained in the “four corners” of the will to discern a testator’s intent, applying legal precedent – earlier case opinions – to interpret the language of the bequest/devise.

The Court of Appeals noted that it was bound – when wording of a will is clear – to apply testator’s language as the expression of his or her intent. When however the language is ambiguous as to intent the court applies canons of construction, which it draws from earlier common law jurisprudence and court precedence. As such, the Court applied the rule of an earlier North Carolina opinion that held when the testator directs equal shares to be divided among heirs named individually as opposed to a general class designation, the distribution is per capita.  However, such result was modified by “Item II” which required further interpretation. The central question – answered “yes” by the lower court – was whether the use of the term “per stirpes” in Item II applied to the distribution in Item I, requiring the deceased son’s share to be set aside for his child.

The Appeals Court, applying North Carolina Supreme Court precedent that established a rule that where use of the term per stirpes is used in direct connection with a particular class without reference to its immediate ancestor class, the effect is to establish the division and distribution directly from the testator. In this case, because Item II identified the grandchildren as such without reference to their parent class, the relationship was with the testator’s “root”, not their parents. The Court stated, “The addition of the term ‘per stirpes’ indicates that the share or shares of any predeceased beneficiary shall then be distributed amongst the grandchildren by representation ‘according to stock or root.’”  

Therefore, in this case, the further identification of the class of heirs in Item II as “my grandchildren” did not indicate a relationship to (and any inheritance rights related to) their immediate parent. This allowed the predeceased potential heir’s share to flow though his sister as well, and be divided among her two children as well. Item II simply worked to modify the per capita (“by the head”) distribution of Item I. (In other words, if Item II had not considered the possible event of a child dying first, the surviving child would have received the entire estate.)  

The result, in its reversal of the Iredell Superior Court’s position is:  ½ share of the estate to the surviving child; the predeceased child’s share was then divided in half (half the grandchildren came from testatrix’s predeceased child, half came from the surviving child), thus ¼ of the estate to the son of the predeceased child, ⅛ each to the two children of the surviving child. This was a different result requested by appellant, that the ½ share of the predeceased child be split three ways equally.

Judge Lucy Inman dissented in the case, believing that the meaning of “per stirpes” – again, “by the branch” – should operate to qualify and disqualify members of the class of grandchildren based their relationship to the predeceased parent through which their share passes through. Turning to North Carolina authority and a Black’s Law Dictionary definition of per stirpes, which defined such as “[p]roportionately divided between beneficiaries according to their deceased ancestor’s share.”  The term thus operates to division of a share to what the deceased ancestor would take. In other words, the result from the majority’s opinion awarded a share outside the branch – the stirp – of a parent, giving a portion of a deceased person’s share to nieces and nephews, which are not lineal descendants. Her award would be: ½ share to deceased child’s child, ½ share to surviving daughter. The two children of surviving daughter receive zero, blocked by the survivorship of their mother.

Either way, the main takeaway is that this is a 2019 case interpreted a fifty year old will. Not much may have been at stake – say a base farm parcel supporting an extended operation – but there was enough wealth to cause one of the grandchildren to invest in obtaining an outcome different than given by the home county court. Periodic updates to testamentary documents can process events as they have unfolded through the years, and particularly in the tragic circumstance of a child dying first, the legal impact of that event should be explored. Language such as “per stirpes” and “grandchildren” and such is meant to be general and capture unanticipated events. The testatrix executed a will – always a good step – but such documents benefit from further review, perhaps by a later lawyer knowledgeable about more recent cases where ambiguous language may or may not have executed a testator’s intent.

The full opinion is available via the NC Courts website.