First National Bank of Salisbury v. Brawley , 231 N.C. 687 ( 1950 )

58 S.E.2d 706 (1950) 231 N.C. 687

FIRST NAT. BANK OF SALISBURY
v.
BRAWLEY et al.

No. 385.

Supreme Court of North Carolina.

April 12, 1950.

Woodson & Woodson, Salisbury, for plaintiff appellee.

Kerr Craige Ramsay and Clarence Kluttz, Salisbury, for appellants.

Brooks, McLendon, Brim & Holderness, Greensboro, for J. W. Brawley and others.

W. C. Coughenour, Jr., Salisbury, Guardian ad Litem for minor defendants.

DENNY, Justice.

In construing a will, the instrument should be considered from its four corners, and effect given if possible, to every clause, or phrase and word therein. Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Lee v. Lee, 216 N.C. 349, 4 S.E.2d 880; Bell v. Thurston, 214 N.C. 231, 199 S.E. 93; West v. Murphy, 197 N.C. 488, 149 S.E. 731; Roberts v. Saunders, 192 N. C. 191, 134 S. E. 451; Snow v. Boylston, 185 N.C. 321, 117 S.E. 14; McCallum v. McCallum, 167 N.C. 310, 311, 83 S.E. 250.

The primary object in interpreting a will is to ascertain what disposition the testator intended to make of his estate. Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. "It is the accepted position in the construction of wills that, unless in violation of some law, the intent of the testator as expressed in the will shall be given effect, and in ascertaining this intent the will shall be considered as whole, giving to each and every part significance and harmonizing apparent inconsistencies, where this can be done by a reasonable interpretation." Snow v. Boylston, supra [185 N.C. 321, 117 S.E. 16], and cited cases.

It is quite clear that the testator did not intend for these appellants to share generally as next of kin per stirpes, in his estate. He expressed that intent very clearly in Items III and V of his will. Consequently, he gave to each of them $2,000.00, in lieu of a full share, and stated his reason for doing so. He further expressed the intent in Item V of his will, that the residue of his estate, which except for a few personal items, constituted all his estate, other than the legacies to these nephews in Item III and the trust estate set up in Item IV, should go to the beneficiaries named therein or the survivors thereof, per stirpes, to the exclusion of these nephews. However, it will be noted that the exclusion of the nephews in Item V was limited expressly to "this clause" and not to the will generally.

We think a careful consideration of the language contained in Items III and V of the will, reveals an intent on the part of the grantor to make what he deemed to be an equitable distribution of his estate as between the children of his deceased brother, R. Vance Brawley, and the residuary legatees, because of the superior financial status of these particular nephews. But he does not use any language in making the final disposition of the residue that might be left in the trust estate, upon the death of the beneficiary of the trust, that would indicate an intention to exclude the appellants from participating in the distribution thereof. He expressly directs his trustee, upon the death of his brother, W. B. Brawley, to "distribute the residue of this trust estate remaining to and among my next of kin, per stirpes."

The primary purpose for creating the trust estate and including in the corpus thereof the share devised to W. B. Brawley under Item V of the will, was to provide for the "maintenance, support and reasonable comfort" of this brother. The trustee, if it had been necessary to do so, might have expended the entire corpus of the trust estate on him. Therefore, the testator may not have considered the disposition of the residue of the trust estate of primary importance. On the other hand, he may have considered that the adjustment already made in the distribution of the major portion of his estate, met his conception of an equitable distribution thereof, and that he intended for these appellants to share as next of kin per stirpes, in the residue, if upon the death of his brother, there should be anything left in the trust estate. The language he used is sufficient to include them and will be so construed, unless a contrary intent on the part of the grantor can be gathered from the will as a whole. Wheeler v. Wilder, 229 N.C. 379, 49 S.E.2d 737; Robinson v. Robinson, 227 N.C. 155, 41 S.E.2d 282; Wachovia Bank & Trust Co. v. Board of National Missions, 226 N.C. 546, 39 S.E.2d 621; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Holland v. Smith, 224 N.C. 255, 29 S.E.2d 888; Williams v. Rand, supra; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.

The defendant appellees argue that since the testator expressly excluded the appellants from sharing in the residue of his estate, as set forth in Item V of the will, they should not participate in the distribution of the residue of the trust estate, since the share of W. B. Brawley, bequeathed and devised to him in said Item, constitutes a part of the trust estate. We do not concur in this view. The testator in creating the trust estate for the benefit of his brother, W. B. Brawley, stated therein that the trust estate should "include such additions as may fall to the share of my said brother, W. B. Brawley, under other provisions of this will hereinafter stipulated." And in the residuary clause in Item V of the will, it is expressly provided that the share falling to his brother, W. B. Brawley, under that Item of the will, was not to be paid over to him but was to be added to and become a part of the trust estate created in Item IV of the will. It seems clear, therefore, that the testator never intended for any residue of the share falling to his brother, W. B. Brawley, to be distributed to the next of kin as defined and limited in Item V of the will, but rather that any such residue should be distributed to his next of kin per stirpes, as provided in Item IV of the will.

The cases relied upon by the defendant appellees are distinguishable from the instant case.

In Hoyle v. Stowe, 13 N.C. 318, 323, the testator stated that his daughter, Elizabeth, had received a certain bequest from her grandfather, and it was his will that with such bequest and the property he expressly bequeathed to her therein, that "she be content, without claiming or receiving any further dividend out of my estate * * *." After making other bequests and providing for the education of his children, the will contained a residuary clause with respect to certain funds, and directed that such funds should be "equally divided amongst my children, paying due respect to the foregoing reservations." The court very properly held that Elizabeth could not participate in the distribution of these funds or in any other residuary assets of the estate.

In the case of Harper v. Harper, 148 N. C. 453, 62 S.E. 553, 555, the testator left a holograph will in which he provided as follows: "In case of my death the enclosed insurance is for my three daughters, Edith, Fay and Mildred. Henry D. Harper Jr., has had his full share out of mine and his mother's estate." He then requested the Citizens Bank of Kinston "to be trustee of my children." The court held that Henry D. Harper, Jr., was not entitled to any benefits under the trust set up for the children, nor was he entitled to any part of the estate.

The testator in the instrument under consideration, however, did not expressly limit the appellants to the bequest of $2,000.00 each. He limited their legacies only insofar as his estate was bequeathed and devised under Items III and V of the will. There is no limitation or expression affecting the distribution of the trust estate, which in our opinion, indicates an intent on the part of the testator to exclude the appellants from participating in the distribution thereof. Hence, we hold the children of R. Vance Brawley, to-wit, Robert V. Brawley, Boyden Brawley and James S. Brawley, the appellants herein, are included in the class entitled to share in the residue of the trust estate, as next of kin per stirpes, as provided in Item IV of the last will and testament of M. H. Brawley, deceased.

The judgment of the court below will be modified in accord with this opinion.

Modified and affirmed.