Armstrong Ex Rel. Martin Ex Rel. Martin v. Armstrong , 235 N.C. 733 ( 1952 )

71 S.E.2d 119 (1952) 235 N.C. 733

ARMSTRONG et al.
v.
ARMSTRONG et al.

No. 601.

Supreme Court of North Carolina.

June 11, 1952.

Burns & Burns, Whiteville, for plaintiffappellant.

Powell & Powell, Whiteville, for defendants-appellees.

JOHNSON, Justice.

The single question presented by this appeal is whether the codicil revokes by implication the original devise to Woodie C. Armstrong of the 38½ acre tract of land (less 5 acres to be cut off for another devisee) and limits his devise to 10 acres thereof, thus leaving the residue of approximately 23½ acres as undevised real estate belonging to the heirs at law of William H. Armstrong as tenants in common as in case of intestacy.

Ordinarily, for the purpose of determining testamentary intention, a will and codicil thereto are to be treated as a single and entire instrument, taking effect at the time of the testator's death. Brown v. Brown, 195 N.C. 315, 142 S.E. 4; Bolling v. Barbee, 193 N.C. 787, 138 S.E. 163; Darden v. Matthews, 173 N.C. 186, 91 S.E. 835.

But the mere making of a codicil gives rise to the inference of a change in the testator's intention, importing some addition, explanation, or alteration of a prior will. In re Will of Goodman, 229 N.C. 444, 50 S.E.2d 34; Baker v. Edge, 174 N.C. 100, 93 S.E. 462; Boyd v. Latham, 44 N.C. 365; 57 Am.Jur., Wills, Sec. 608, p. 417.

It is an established rule of construction that where a will and codicil are repugnant and irreconcilable in their provisions, the codicil, being the latest expression of the testator's desires, is to be given precedence. Hallyburton v. Carson, 86 N. C. 290; 57 Am.Jur., Wills, Sec. 608, p. 417. And the testator's intent in making the codicil may be found in the codicil itself. Homer v. Brown, 16 How. 354, 57 U.S. 354, 14 L. Ed. 970.

Accordingly, a codicil plainly inconsistent with the provisions of the will operates, to the extent of the inconsistency, as a revocation of the will, and this is so even in the absence of any express words of revocation. 57 Am.Jur., Wills, Sec. 485, p. 339.

However, "in order that a codicil shall operate as a revocation of any part of a will, in the absence of express words to that effect, its provisions must be so inconsistent with those of the will as to exclude any other legitimate inference than that of a change in the testator's intention." 68 C.J., p. 810. See also Baker v. Edge, supra; Rhyne v. Torrence, 109 N.C. 652, 14 S.E. 95; Hallyburton v. Carson, supra; Boyd v. Latham, supra; 57 Am.Jur., Wills, Sec. 485, p. 339.

True, where there is a will it is presumed that the testator intended not to die intestate as to any part of his estate. Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454, at page 460, 67 S.E.2d 651; Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369; Van Winkle v. Berger, 228 N.C. 473, 46 S.E.2d 305; Holmes v. York, 203 N.C. 709, 166 S.E. 889.

However, this presumption against partial intestacy will not prevail where the language of the will, fairly construed, discloses a contrary intention, the rule being that the presumption may not be invoked to alter the plain meaning of simple, unambiguous language, nor to include in the will property not comprehended by its terms. 57 Am.Jur., Wills, Sec. 1159.

And it should be kept in mind that the presumption against partial intestacy is applied only as an aid in construction. Seawell v. Seawell, supra; Van Winkle v. Berger, supra; 69 C.J., p. 95.

Accordingly, "a construction based on such presumption will not be made where it is apparent from the language of the will that it would be contrary to the intention of the testator, or where intestacy is effected by the plain and unambiguous language of the will." 69 C.J., pp. 95 and 96. See also Rigsbee v. Rigsbee, 215 N.C. 757, p. 761, 3 S.E.2d 331; McCallum v. McCallum, 167 N.C. 310, 83 S.E. 250.

In the instant case, by the terms of Item 7 of the will the testator devised to his son Woodie C. Armstrong the entire tract of 38½ acres (less 5 acres to be cut off for another devisee), whereas by the terms of the codicil the devise to Woodie is cut down to "ten (10) acres of the remainder * * * to be cut off from the land adjoining Rufus Shipman, Seth L. Smith, and J. M. Shipman estate."

This provision of the codicil may not be reconciled with the previous item of the will. Clearly the two provisions are inconsistent and repugnant. This being so, the codicil prevails and the cognate provision of the will is repealed by implication.

Here the presumption against partial intestacy yields to the plain meaning of the codicillary provision indicating a contrary intent of the testator.

This conclusion is not at variance with the decisions in Jenkins v. Maxwell, 52 N. C. 612 and Rhyne v. Torrence, supra, cited by the appellant. The facts in those cases are distinguishable.

There is no merit in the contention that the fourth paragraph of the codicil is void for uncertainty. The ten acres devised to Woodie are directed to be cut off on the side "adjoining Rufus Shipman, Seth L. Smith and J. M. Shipman." This designation is sufficiently definite to support the devise. See Freeman's Heirs at Law v. Ramsey, 189 N.C. 790, 128 S.E. 404; Blanton v. Boney, 175 N.C. 211, 95 S.E. 361; Wright v. Harris, 116 N.C. 462, 21 S.E. 914; Harvey v. Harvey, 72 N.C. 570; Grubb v. Foust, 99 N.C. 286, 6 S.E. 103; Jones v. Robinson, 78 N.C. 396; Annotation 157 A.L.R. 1129, 1135.

The record and appeal entries indicate that all plaintiffs appealed. However, the plaintiff Woodie C. Armstrong appears to be the only party aggrieved by the decision below, and the appeal as presented on brief challenges the validity of the judgment below only as it affects him. Therefore, he is treated as the sole appellant, with direction that the costs be taxed against him.

Affirmed.