Efird v. Efird , 234 N.C. 607 ( 1951 )

68 S.E.2d 279 (1951) 234 N.C. 607

EFIRD
v.
EFIRD et al.

No. 527.

Supreme Court of North Carolina.

December 12, 1951.

David J. Craig, Jr., Charlotte, for defendants, appellants.

Pierce & Blakeney and Richard E. Wardlow, all of Charlotte, for plaintiff, appellee.

DENNY, Justice.

The primary object in interpreting a will is to ascertain what disposition the testator intended to make of his estate. First Nat. Bank of Salisbury v. Brawley, 231 N.C. 687, 58 S.E.2d 706; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. Consequently, the intention of the testator is the polar star that must guide the courts in the interpretation of a will. Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625; Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205; Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17; Holland v. Smith, 224 N.C. 255, 29 S.E.2d, 888. This intention is to be gathered from a consideration of the will from its four corners, and this intention should be given effect, unless contrary to some rule of law or at variance with public policy. Coppedge v. Coppedge, 234 N.C. 173, 66 S.E.2d 777; House v. House, 231 N.C. 218, 56 S.E.2d 695; Williams v. Rand, 223 N.C. 734, 28 S.E.2d 247; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356.

Furthermore, Stacy, C. J., speaking for the Court in the case of Citizens Nat. Bank v. Corl, 225 N.C. 96, 33 S.E.2d 613, 616, said: "The intention of the testator is his will. This intention is to be gathered from the general purpose of the will and the significance of the expressions, enlarged or restricted according to their real intent. In interpreting a will, the courts are not confined to the literal meaning of the words. A thing within the intention is regarded within the will though not within the letter. A thing within the letter is not within the will if not also within the intention."

In construing the instrument before us, what do we find to be the intention of the testator with respect to the disposition of his property?

In the first place, it is clear that when the testator wrote Item III of his will, he was under the erroneous impression that he and his wife owned their home place, located at 224 Hermitage Road, Charlotte, North Carolina, as tenants by the entirety. Being under this impression, he stated that the property upon his death, if his wife, Maude Gray Efird, be living, she would automatically own the property. He then proceeded to bequeath to her any automobile or automobiles that he might own at the time of his death and also all of his right, title and interest in and to all furniture, household effects, and other tangible property contained in their family residence, to be hers absolutely and forever.

In Item IV of his will, the testator provided that after the personalty bequeathed in Item III of his will had been given to his wife, and she had received the real estate that might be owned at the time of his death by them as tenants by the entirety, and after the debts of his estate were paid from the corpus of his general estate, but before any death, inheritance, or estate taxes shall be considered or taken into account, his wife, Maude Gray Efird, should have two-sixths or one-third interest in all his estate. Again it is clear that the testator did not intend for the home place to constitute a part of the estate at the time of this division. He was under the impression that when this division would take place, his wife would be the absolute and fee simple owner of the property.

Even so, he did not stop there. He included an additional provision in Item V of his will, directing the payment of death, estate, inheritance and other similar taxes and duties, properly chargeable against his estate, "after all my debts shall have been paid, and after the above properties shall have been given to my wife." In other words, "the above properties," which "properties" necessarily include the home place, must first be set apart and given to his wife, and then out of the remainder of the estate the taxes properly chargeable against the estate were to be paid. He further provided that when such taxes were paid, no part thereof should be charged against any particular beneficiary under his will. Finally, the net remaining assets in the estate were to be divided equally among his four children.

We are not inadvertent to the rule, which the appellants contend is controlling here, to the effect that where "a testator erroneously recites that he has made some disposition of property belonging to him by an instrument other than the will, it is held that such recital is merely an incorrect description of an instrument extrinsic to the will and may not operate as a gift by implication." 57 Am.Jur., Wills, section 1193, page 784. We think this rule would be applicable in the instant case if the plaintiff had to rely exclusively on the provisions of Items III and IV of the will. In these items, the testator does not refer to the real estate held by the entireties as a gift or devise, but merely as passing to his wife, but in Item V of the will he said: "after the above properties shall have been given to my wife," the various taxes, properly chargeable against the estate should be paid, and the remainder of his estate divided among his four children named therein.

A careful consideration of the entire will leads us to the conclusion that in using the language contained in Item V of the will, the testator intended to give whatever interest he might have in the properties referred to in Items III and IV of his will, to his wife, and that such intention should be made effective.

In the case of Kerr v. Girdwood, 138 N.C. 473, 50 S.E. 852, 107 Am. St. Rep. 551, the testatrix left a will in which she said: "I wish to record the wishes of my darling husband * * *. At my death he wished the two laundry properties to be sold, * * * and the proceeds of the sale to be equally divided between his sister (if living) and his brothers, who are living." No other disposition of these properties was made by the testatrix. In construing the above provisions of the will, Brown, J., in speaking for the Court said: "Are these words testamentary in character, or merely a recital of an occurrence which had taken place between her and her husband? After carefully considering the entire will in the light of the authorities, we have concluded that it was the intention of the testatrix, in employing these words, that they should have a testamentary effect, and that the language employed by her is of such legal efficacy that the law can give force to it and execute her intention. * * * There is nothing in the entire will inconsistent with the purpose to give the laundry properties in accordance with her husband's wishes. To refuse to give them effect would be at variance with her plain intent. No particular form of expression is necessary to constitute a legal disposition of property. Underhill on Wills, §§ 37-43; Schouler, §§ 262, 263; Alston v. Davis, 118 N.C. 202, 24 S.E. 15. Although apt legal words are not used, and the language is inartificial, the courts will give effect to it where the intent is as apparent as that of the testatrix in this will." In re Edwards' Will, 172 N.C. 369, 90 S.E. 418; In re Will of Deyton, 177 N.C. 494, 99 S.E. 424; Burcham v. Burcham, 219 N.C. 357, 13 S.E.2d 615, 616.

In Burcham v. Burcham, supra, where, in giving effect to a devise by implication, the Court said: "While a devise or bequest by implication should not be presumed except upon cogent reasoning and where necessary to carry out the intent of the testator, the doctrine is well established in the law." The Court quoted with approval the following statement from Parker v. Tootal, 11 H.L.Cas., 143, 161: "If a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court may supply the defect by implication, and so mould the language of the testator as to carry into effect, so far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared."

In 57 Am.Jur., Wills, section 1192, page 782, et seq., it is stated: "A bequest or devise may be made by mere implication, unless the implication violates public policy or some established rule of law, but to raise such implication it must be necessary to do so in order to carry out a manifest and plain intent of the testator which would fail unless the implication is allowed. Gifts by implication are not favored and cannot rest upon conjecture. Such a gift will not be inferred from mere silence, but must be founded on expressions in the will, and is only admitted as a means of carrying out what the testator appears on the whole to have really meant, but failed somehow to express as distinctly as he should have done. It has been said that the probability of an intention to make the implied gift must be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind. On the other hand, it is not required that the inference be absolutely irresistible; it is enough if the circumstances, taken together, leave no doubt as to the testatorial intention, and in some cases it is said that the implication may be drawn from slight circumstances appearing from the will." See also 69 C.J., Wills, section 1123, page 69, citing Kerr v. Girdwood, supra, and Ferrand v. Jones, 37 N.C. 633.

The judgment of the court below is affirmed.