Sutton v. Quinerly , 231 N.C. 669 ( 1950 )

58 S.E.2d 709 (1950) 231 N.C. 669

SUTTON et ux.
v.
QUINERLY et al., and four other cases.

No. 382.

Supreme Court of North Carolina.

April 12, 1950.

John G. Dawson, Kinston, Varser, McIntyre & Henry, Lumberton, for petitioners-appellants.

Whitaker & Jeffress, Kinston, Hugh Dortch, Goldsboro, for respondents-appellees.

SEAWELL, Justice.

The principal assignments of error fall into two classes: Objections to the interpretation Judge Grady gave to the orders of consolidation as being too broad, thereby "spreading" his conception of the devise in Item 5th of the will, and possibly the effectiveness of the plea of res judicata over all the proceedings so consolidated; and those designed to preserve the contention that appellants are devisees under the will. We do not find it necessary to discuss the first class in detail since it seems clear that if the purpose was only to facilitate the handling of the funds and conserve them for distribution, that purpose is sufficient to include all matters affecting the rights of those contending themselves to be distributees; and whether the proceedings be considered in the aggregate or as discrete transactions, it would not affect the plea in bar if found applicable.

It appears from the record and by reference to the judgment rolls therein that from the beginning of the litigation and through all of the consolidated proceedings the litigating parties are either identical or privies in interest as successors of former parties, and privies to such judicial determination of right as pertains to the subject matter dealt within the decision of Sutton v. Quinerly, 228 N.C. 106, 44 S.E.2d 521, including such rights as it was the duty of parties to plead or assert in that cause as essential to the final determination of the controversy. The same identity of parties and privies where death has removed some of the parties and substituted others in the same interest appears now in the case before us for decision; and the subject matter is the same: The property devised in Item 5th of the will to Annie C. Fields for life, with contingent remainder in fee to others; which carries with it the disputed disposition of the remainder in fee on resolution of the contingency.

True, when the case reported sub nomine Sutton v. Quinerly, supra, was before us only a part of that property was involved in the petition for sale and the incidental construction of the will. But the property described in Item 5th was devised integrally and the title to every part of it hangs upon the same thread. Its potentiality of infinite physical subdivision could not so affect the principle of res judicata as to make a hundred suits necessary to estoppel.

The identity of parties and privies and of subject matter in the several judgment rolls set out in the record, with those in the cited case of Sutton v. Quinerly, all within the scope of the judgment in that case exhibited in the record, is sufficient to sustain the plea of res judicata and estoppel invoked by the appellees.

But whether we deal with res judicata or its little brother in principle, "the law of the case," the appellants insist that Sutton v. Quinerly is so outstandingly erroneous in its construction of the will as to justify the Court in relaxing the rigidity of either rule, by exception and correction. The gist of the grievance against Sutton v. Quinerly is that the Court missed the real point at issue and indulged in improvident discussion of the rule against intestacy, where as it was obvious that the fee-remainder passed as a testate provision under a residuary clause,—referring to Item 8th of the will quoted supra.

Counsel may ignore it, but cannot expect the Court to be oblivious to the fact that since Sutton v. Quinerly was decided here on appeal the present appellants have executed a complete about-face respecting their claim to the property, and are in process of changing horses in the middle of the stream. In Sutton v. Quinerly they made no claim, either in the lower court or here on appeal, that they were entitled to the property under the residuary clause as testate beneficiaries; but on the contrary claimed that W. C. Fields failed to pass the remainder in fee by his devise in Item 5th of the will and died intestate as to that interest, claiming exclusively by inheritance from W. C. Fields, Sr. See "Records and Briefs, Fall Term, 1947, 6-15," where, in their brief, they present it as the only question before the Court.

It is the custom of reviewing courts to consider cases within the frame of the appeal and to give consideration to the basis of the claim presented rather than, ex mero motu, to force litigants into a position which they have regarded as less strategic.

We may examine the case from this new angle without reference to the prior adjudication. It does not necessarily change the result or the reasoning by which it was reached. The appellants still have to hurdle the dispository language used in Item 5th contended by them to fall short of the devise of the remainder in fee, as well as the restricting language of the residuary item, (a particular, not a general residuary clause), which they contend carries a testamentary devise of the subject interest to them.

The rule against partial intestacy is not one of public policy, operating regardless of intent, or in contradiction of manifest intent, but an aid to finding the intent when the meaning is unclear. It is based on experience, reason and a recognition of normal human conduct in the area of its application. Analogous reasoning may be safely applied to the instant question: Whether William C. Fields has, within the confines of Item 5th, completed the devise of all his interest in the subject property, or, because of the nature of the contingency, has left the remainder interest undevised therein.

For the purpose of testamentary disposition Fields made a mental division of his extensive real property, and put these parts, so to speak, in separate cubicles of his will, in which, respectively, the five living children were the first objects of his bounty, and next in importance were the grandchildren, some of them already born to married children, and others possibly to be born to others at that time unmarried. One of these cubicles is Item 5th, the immediate subject of this controversy. There are four other similar items in which the problem of disposition is, upon the face of them, similarly worked out with regard to the other four children.

The manner of dealing with the subject matter is strongly persuasive of the intention to complete the devise of the property in Item 5th of the will in the dispository formula there used.

Is it reasonable to suppose that Fields, having come down to the disposition of the property included in this Item, and having given to Annie a life estate therein, and having undertaken to deal with the remainder in fee, failed to carry through the business and let it slip from his hands unfinished, dum fovet opus, either into the statute of descent and distribution or the catchall of a doubtful residuary clause? That sort of thing is not easily explained by reference to a residuary clause when we are looking for the intent where it ought to be found (if the testator could keep his affections in mind long enough), rather than for a mere legal effect, which neither loves nor remembers.

A closer look at the language used in the devise bears this out. The devise is in sequence, in one compouund sentence written in parallel construction, the parts of which are obviously so related as to be complementary and must be construed together to make a complete sentence.

The appellants, as stated, contend that the negative branch of the sentence, i. e., "* * * if she does not marry * * *" expresses the entire contingency on which the succession of the sisters Quinerly and Craddock, the appellees, depends; that it stands alone without necessity of construction, and without reference to the other limb of the sentence or closely associated context. "It is so written." This sort of dichotomy does not reflect the common sense theory of construction and does not satisfy the other rules we are constrained to apply.

The intent of the will is to be gotten from its four corners, Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150, 48 S.E.2d 41; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247. And the intent is the will. Jarrett v. Green, 230 N.C. 104, 52 S.E. 2d 223. Certainly a part of the same sentence dealing with the same subject may be consulted to find the real meaning and intent of an expressed condition which, unexplained, would otherwise be unusual, arbitrary and unique in the scheme of disposition.

We cannot assent to the view that the maker of this will, having carefully provided for the succession of his grandchild, or grandchildren to the fee in case Annie married, would, in the same breath nullify that possibility and disinherit his grandchildren solely because she married. It involves an absurdity which justifies the Court in clarifying the whole sentence, in order to find a reasonable intent. 57 Am. Jur., Wills, 1127, 1129: "The inconvenience or absurdity of a devise is no ground for varying the construction where the terms are unambiguous. But when the intention is obscured by conflicting expressions, it is to be sought in a rational and consistent rather than in an irrational and inconsistent purpose." Graham v. Graham, 23 W.Va. 36, 48 Am.Rep. 364; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888; Williams v. Rand, supra; Pilley v. Sullivan, 182 N.C. 493, 109 S.E. 539.

The conclusion is inescapable that Fields did not intend to make two distinct contingencies, contradictory to each other, the last destroying the first. To him the failure to marry meant the failure of issue born to any marriage which Annie might contract and was intended to be an alternative statement of the contingency, meaning that if Annie did not have issue by marriage (to whom in that event he had already devised the property), the remainder should then go to the brother or sisters who should survive the holder of the life estate; and the Court is justified in reading that construction into the will. In Gordon v. Ehringhaus, 190 N.C. 147, 129 S.E. 187, 189, it is said: "In performing the office of construction, the court may reject, supply or transpose words and phrases in order to ascertain the correct meaning and to prevent the real intention of the testator from being rendered aborted by his inept use of language," citing Carroll v. Victor Mfg. Co., 180 N.C. 366, 104 S.E. 895, and Tayloe v. Johnson, 63 N.C. 381; Williams v. Rand, supra. Only by such construction could harmony be brought into the dispository language and bring out what we conceive and hold to be its intent.

In view of the conclusion we have reached, it is not necessary to burden the residuary clause, at most of doubtful receptivity, or the statute of descent and distribution, with an estate sufficiently limited and devised when first dealt with in the will.

For the reasons stated we find the proceeding in the court below free from error, and the judgment must be affirmed.

Affirmed.