McCain v. Womble , 265 N.C. 640 ( 1965 )

144 S.E.2d 857 (1965) 265 N.C. 640

Nannie Sears McCAIN and husband, Dacus P. McCain, Jr.
v.
Betty Sears WOMBLE and husband, Bennie Womble, Earl O. Sears and wife, Elsie B. Sears, and Barbara Ann S. Berge and husband, Phil Berge.

No. 295.

Supreme Court of North Carolina.

November 24, 1965.

Valentine & Valentine, Nashville, for Betty Sears Womble and husband, respondent appellants.

Fields & Cooper and Leon Henderson, Jr., Rocky Mount, for Nannie Sears McCain and husband, petitioner appellants.

Battle, Winslow, Merrell, Scott & Wiley, Rocky Mount, for respondents Sears, appellees.

Evans & Shannonhouse, Rocky Mount, for respondents Berge, appellees.

DENNY, Chief Justice.

This matter was heard by the court below without a jury, a jury having been expressly waived by counsel for all parties. The court heard the evidence and examined the proof offered by the respective parties, found the facts, and entered judgment as hereinabove set out.

Appellants' assignment of error No. 5 is based on an exception to finding of fact No. 10, which reads as follows:

"By their dealings with the lands devised in the residuary clause of Isaac Womble's Will (including the exchange of deeds in 1934 described in paragraph 6 of the petition) the heirs of Isaac Womble, including the parties to this proceeding, have over a period of many years given a practical construction to the term of said Will and Codicil, recognizing between themselves that Mary Womble Sears held a life estate, and that there was a vested remainder in each of the said three children, so that upon the death of any child the children of said deceased child would take the share that their parent would otherwise have received."

In our opinion, neither the oral evidence nor the documentary proof admitted in the hearing below, supports this finding of fact.

It is true that the quitclaim deed from Ella Calhoun named Mary Womble Sears and her three children as grantees in the deed in which Ella quitclaimed to the grantees her interest in Lot No. 4 of Isaac's land. It clearly appears, however, that this deed was executed for the sole purpose of vesting title to Lot No. 4 in Mary Womble Sears in the exact manner she would have held it under the terms of her father's will and codicil had she been allotted Lot No. 4 of Isaac's land in the partition proceedings, and the deed so stipulates. This deed in no way purports to add to or take from the devise Isaac made to his daughter Mary, but on the contrary purports to vest in Mary a life estate in said Lot No. 4, then, at her death, to go to her next of kin in fee simple.

Now with respect to what Isaac intended by limiting Mary's interest in his estate to an estate for life and after her death to go to her next of kin. Isaac's will must be interpreted from the language used by him and not according to what others might think he meant or what he might have thought the words "next of kin" meant, unless he had expressed a different meaning with respect thereto.

This Court has repeatedly held that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. This intent is to be gathered from a consideration of the will from its four corners, and such intent should be given effect unless contrary to some rule of law or at variance with public policy. Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Smith v. Mears, 218 N.C. 193, 10 S.E.2d 659; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; House v. House, 231 N.C. 218, 56 S.E.2d 695; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; Mewborn v. Mewborn, 239 N.C. 284, 79 S.E.2d 398; Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465; Strong's North Carolina Index, Vol. IV, Wills, § 27, page 502, et seq.

In the case of Elmore v. Austin, supra, Ervin, J., speaking for the Court said:

"In construing a will, the court seeks to ascertain and carry into effect the expressed intention of the testator, i. e., the intention which the will itself, either explicitly or implicitly, declares. * * * Where the language employed by the testator is plain and its import is obvious, the judicial chore is light work; for, in such event, the words of the testator must be taken to mean exactly what they say. * * * But where the language in the will does not clearly express the testator's purpose, or when his intention is obscure because of the use of inconsistent clauses or words, the court finds itself confronted by a perplexing task. In such case, the court calls to its aid more or less arbitrary canons or rules of testamentary construction designed by the law to resolve any doubts in the language of the testator in favor of interpretations which the law deems desirable. 57 Am.Jur., Wills, sections 1120, 1124; Am.Law Inst.Restatement, Property, Vol. 3, section 243."

Appellants also assign as error the signing and entry of the judgment on the ground the same is not supported by competent evidence and is erroneous in law.

In Shoup, Smith and Wallace v. American Trust Co., 245 N.C. 682, 97 S.E. 2d 111, it is said:

"Ordinarily, extrinsic evidence is admissible to identify persons embraced within a class to whom a devise or bequest has been made. However, in the absence of ambiguous language in the will, extrinsic evidence, either parol or written, may not be admitted ``to vary, contradict, or add to the terms of the will, or to show a different intention on the part of the testator from that disclosed by the language of the will, * * *.' 57 Am.Jur., Wills, section 1040, page 674; Field v. Eaton, 16 N.C. 283; Reeves v. Reeves, 16 N.C. 386; Blacknall v. Wyche, 23 N.C. 94; Kinsey v. Rhem, 24 N.C. 192; Barnes v. Simms, 40 N.C. 392, 49 Am.Dec. 435; Thomas v. Lines, 83 N.C. 191; Wooten v. Hobbs, 170 N.C. 211, 86 S.E. 811; [Wachovia Bank &] Trust Co. v. Wolfe, 245 N.C. 535, 96 S.E.2d 690, and cited cases; Annotation—Will—Construction—Extrinsic Evidence, 94 A.L. R. 26."

In the case of Clark v. Connor, supra, this Court said:

"* * * Ordinarily nothing is to be added to or taken from the language used, and every clause and every word must be given effect if possible. Generally, ordinary words are to be given their usual and ordinary meaning, and technical words are presumed to have been used in a technical sense. If words or phrases are used which have a well-defined legal significance, established by a line of judicial decisions, they will be presumed to have been used in that sense, in the absence of evidence of a contrary intent. * *"

In the absence of some expression to show the testator meant otherwise, the words "next of kin" have had a well-defined legal significance and have been uniformly interpreted to mean nearest of kin. Jones v. Oliver (1844), 38 N.C. 369; Simmons v. Gooding (1848), 40 N.C. 382.

In the last cited case Pearson, J., later C. J., said:

"If to the words ``next of kin' these words had been added, ``as in case of intestacy' or ``as by the statute of distributions,' or if the language of that statute had been adopted, ``to the next of kin in equal degree, or to those who legally represent them,' we might have included the grandchildren; but upon the words ``next of kin,' simply, they cannot be included. Children are in the first degree; grandchildren are in the second degree. We have no right to bring grandchildren as near as children, unless the testator had made known to us by his will that such was his intention."

We find nothing in the will of Isaac Womble to indicate that he did not intend to use the words "next of kin" in the technical sense which these words have been construed to mean in our long line of judicial decisions. Redmond v. Burroughs, 63 N.C. 242; Harrison v. Ward, 58 N.C. 236; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662; Williams v. Johnson, 228 N.C. 732, 47 S.E.2d 24; Central Carolina Bank & Trust Co. v. Bass, 265 N.C. 218, 143 S.E.2d 689.

In the last cited case, Sharp, J., speaking for the Court, said:

"* * * It is the rule in this jurisdiction, as well as in England and a substantial number of the other American jurisdictions, that the words next of kin ``mean "nearest of kin," and that in the construction of deeds and wills, unless there are terms in the instrument showing a contrary intent, the words "next of kin" without more do not recognize or permit the principle of representation.' * * *"

We hold that Nannie Sears McCain and Betty Sears Womble each own an undivided one-half interest in Lot No. 4 of Isaac's land, and that Earl O. Sears and Barbara Ann Sears Berge have no right, title or interest in said tract of land.

This cause will be remanded to the end that judgment be entered in accord with this opinion.

Reversed and remanded.