Capehart v. . Burrus , 42 L.R.A. 152 ( 1898 )

FAIRCLOTH, C. J., and CLARK, J., dissent. The principal question presented in this appeal (120) is the meaning to be given to the word "stock" in construing the will of W. J. Capehart. It appears from the will that the testator was a man of considerable estate: that on 5 December, 1894, he made the will under consideration, and died in March following. At the time of making the will he had a wife and several children, all of whom were living at the time of his death.

By the third paragraph of his will he devised to his wife, Eliza Mason Capehart, three several tracts or parcels of land in fee simple. By the fourth paragraph he willed to his said wife two horses to be selected by her, two which cows to be selected by her, one buggy and harness, corn, fodder, and one thousand pounds of pork from the gallows, all his poultry, and all his household and kitchen furniture, except the organ, piano, and the furniture in Minnie's room. These he gave to Minnie by the next paragraph of his will.

By paragraph 8 he gives one tract of land, and mills and gins thereon, to his daughter, Minnie Capehart, in fee simple.

By paragraph 8 he loans to his daughter, Martha Tyler, for her natural life "her home tract of land," and then in fee simple to her children.

By paragraph 10 he loans to Susan Tyler, another daughter, for her natural life, two tracts of land in Northampton County, and at her death to her children.

By paragraph 11 he gives to Margaret Burrus, another daughter, a tract of land in Northampton County called the "Brown tract," for her life only, and at her death to Lizzie Burrus, in fee simple.

By paragraph 12 he devises to his son, Dr. A. Capehart, in fee (121) simple, the Indian Woods place.

By paragraph 13 he devises to Leroy Capehart, another son, the land on the right hand side of the public road in Roxobel.

By paragraph 14 he provides that "all my notes, bonds, stock and money on hand, I wish divided between my wife, Eliza Mason Capehart, Minnie Martin Capehart, Margaret Lula Burrus, Leroy Capehart and Dr. A. Capehart."

By paragraph 15 he provides that all the rest of his estate "whether named in this item or not, consisting of both real and personal property, I direct my executors to sell as follows: The personal property for cash, and the lands on a credit of five years, on equal installments with retained title until the lands are paid for. I express and give my executors full authority to sell and dispose of said lands not herein mentioned by me, and as herein directed."

By paragraph 16 he provides that, out of the proceeds arising from the sale of the property mentioned in paragraph 15 of his will, his executors are directed to pay the following: To Helen Tyler, one hundred dollars; to Bertie Tyler, one hundred dollars; to Charles C. Tyler, one hundred dollars; "and all the rest and residue of said sum, so arising from said sales, I give equally share and share alike to Dr. A. Capehart, Leroy Capehart and Minnie Martin Capehart."

There are some general rules to be observed in construing a will: That the whole will must be considered for the purpose of arriving at the intention of the testator, if that can be done, and then to put such construction upon the will as will carry out the intention of the testator, if the language used therein will authorize the Court to do so. Brawley v. Collins, 88 N.C. 605; that words of art should be taken in their technical meaning, unless it appears from the will that they (122) were used in a different sense; that when the language used is not "words of art," it should be construed to have the meaning of such words in ordinary parlance. And there are other general rules which do not apply to this case. But, at last every will stands alone and must be construed alone. There are no fixed and certain rules to guide the Court in making the construction.

With these general observations, we will proceed to put such construction on this will, as it seems to us the language used will authorize, and most nearly carry out the intention of the testator — as we are not authorized to make his will, but only to interpret its meaning from the will itself. Brawley v. Collins, supra.

It is contended by the plaintiffs that the word "stock," used in paragraph 14, means choses, bonds of corporate bodies, or of governments, or evidence of shares in corporations or joint companies, while the defendants contend that it means live-stock, horses, mules, cattle, etc. The Court below adopted the defendants' contention, and held that it meant live-stock — domestic animals. In this, we are of the opinion there was error, and that the plaintiffs' contention is correct, that is, that it means dead stock, choses, bonds, evidence of an interest in capital stock of some incorporated or joint stock company.

This is the primary meaning, in law language, of the word "stock." 23 A. E. Ency., has a chapter entitled "Stock," and in a treatment of over one hundred pages this word is given no other meaning than that given to it in this opinion. On page 584 of this volume, the discussion commences, and the meaning of the word "stock" is given. This author says that the word "stocks" "is sometimes used, but with doubtful accuracy, and it is at least obsolescent." Besides this, it is used (123) in the same sentence with "all my notes, bonds, stock, and money on hand." This, in our opinion, is significant of the meaning the testator intended it to have. It is in the wrong place, or, as was said by counsel, "it is in the wrong stable for horses and mules."

In Brawley v. Collins, 88 N.C. 605, the testator gave his wife a life estate in a part of his lands, and devised other parts in fee simple. He made no express disposition of the remainder of the land he willed to his wife for life. This devise to his wife was in paragraph 11, in which he provided as follows: "It is my will that all property, money and effects willed by me to my wife Mary, that may be left at her decease, shall be equally divided between my daughter Betsy, and grandsons, Stephen Brawley and Peter W. Brawley." Upon the death of the wife, Stephen and Peter claimed two-thirds of the land willed to their grandmother, Mary, for life, under section 11 of the will. In construing this will the Court say "that the word property is used in clauses 9, 10 and 11 of the will, and in the two former, evidently to designate personal things. In clause 10, it follows an enumeration of certain small articles of household furniture, and it is plainly intended to cover such articles as are not specifically mentioned, but are of the same general class with those that are mentioned." In the succeeding clause (the clause under which Stephen and Peter claim) "it is in association with money and effects, and is, as in the proceeding, necessarily confined to personalty, since all the property not named in the will must exclude realty, which is named and devised." "The 11th clause also associates all (124) property, money and effects, and as the other disposed of what had been omitted, this disposes of what had been specified and given to the widow, which remained at her death. The words are evidently used in the same sense in both paragraphs and bear an obvious relative meaning to each other."

It seems to us that this comes as near being a case directly in point as can well be found, in the construction of wills. And if the words "allproperty" are to be construed to mean only personal because they are used in association with the disposition of personal property in the two preceding paragraphs of that will, then the word "stock," when used in the same paragraph and in the same sentence with notes, bonds and money (all of my notes, bonds, stock and money on hand), in the will under consideration, would be given the meaning contended for by the plaintiffs — the same kind of personal property, as notes, bonds and money.

This interpretation and construction are supported by other dispositions of the will. The testator had previously given to his wife two choice horses, two choice which cows and a thousand pounds of pork. So, he could not dispose of all his live-stock in paragraph 14, as claimed by the defendants, without defeating the former provision made for his wife, and this should be considered in giving an interpretation of the will. Ruffinv. Ruffin, 112 N.C. 102.

It was contended by the defendants in support of their contention that "stock" must mean live-stock, such as horses, mules, etc., and that the testator had no such "stock," as contended for by the plaintiff, at his death; and that, if the plaintiffs' contention is correct, the testator was willing something he did not have. This may be so, and still, in our opinion, not make "stock," as used in this will, mean live animals. If it be true that he had no "stock" securities at the time the will was written, nor at the time of his death, this fact does not appear (125) in the will, which must be construed from what appears in the will itself. Brawley v. Collins, supra. From what appears in the will the testator was a man of considerable wealth and was able to own such "stock." A will speaks as of the date of the testator's death.Champion Ex parte, 45 N.C. 246. And if we were allowed to speculate as to this matter, it may be that he expected to own such stock at his death. But this is not necessary, and, as no such thing appears in the will, we are not allowed to do so. This we think is a different question from that raised in the cases cited by the defendants, where the question was as to whether stock, deposited in a bank, passed to the legatee by the language "all my bank stock" in that bank, when the testator owned no stock in the bank, but had stock on deposit in the said bank. This was more a question of latent ambiguity than a construction of the will — of fitting the thing willed to the will. And the Court held that it was clearly the intention of the testator to dispose of this stock in the bank to the legatee named, and that he had used language sufficiently explicit to do so. This is not the case in this will.

It is admitted here that the live-stock is disposed of either by this or the next succeeding paragraph of the will. This is the residuary clause, and directs the executors to sell all the rest and residue of his property, both real and personal, not heretofore disposed of by this will. The live-stock was not disposed of, unless it is by the word "stock" in the 14th paragraph, except the two horses and the two cows given to the testator's wife.

It was contended that the testator had a large amount of live-stock, and that is used as an argument in favor of their contention. It does not appear from the will what live-stock he had, and, if it (126) did, we fail to see the strength of this argument that the defendants' counsel saw.

There is error in the judgment below. The word "stock," as used in paragraph 14 (written 13) of the will of W. J. Capehart, does not mean live-stock, such as horses, mules, etc. Such horses, mules and other livestock, as belonged to the testator at his death, are included in the 15th paragraph (written 14th) and it is the duty of said executor to proceed to sell the same as therein provided, and, out of the proceeds of such sales, he will pay the testator's debts and the costs and expenses of administration, and then, out of the proceeds arising from these sales, pay the legacies of $100 each to Helen Tyler, Bertie Tyler and Charles C. Tyler, and the residue thereof he will divide equally between Dr. A. Capehart, Leroy Capehart and Minnie Martin Capehart, as provided in said paragraph of said will.

Error.

There will be judgment according to this opinion.