Wachovia Bank & Trust Co. v. Lindsay , 210 N.C. 652 ( 1936 )

Civil action for construction of will.

The record discloses that Dr. A. Fuller, of Randolph County, died 15 December, 1906, leaving a last will and testament, which is now the subject of controversy between or among some of the parties litigant.

The item which gives rise to this controversy is as follows:

"Item Second: I give, devise and bequeath all my estate and effects both real and personal, including all moneys on hand and all debts due me to my beloved wife Julia C. Fuller, for the term of her natural life or during her widowhood, and upon her second marriage or death, whichever shall occur first, that all said property and effects, shall be disposed of as follows, that is to say, two-thirds thereof to be divided among those who would have been my heirs and distributees had I not made this will, my said wife not included, and the remaining third to my said beloved wife Julia C. Fuller her heirs and distributees in fee simple forever."

In 1907, a division of the estate of the testator was had between the widow and "those who would have been my heirs and distributees had I not made this will" — a brother, a sister, and a nephew — living at the time of testator's death, and said division and settlement was duly approved by order of court in a proceeding brought for the purpose.

The brother, sister, and nephew of the testator, parties to said proceeding, are all dead, and the appealing defendants herein are their children and grandchildren.

The testator's widow never married again, and died in August, 1933.

It is the contention of the appealing defendants that under the second item of the will in question, the "heirs and distributees" of the testator, who ultimately take the "two-thirds of all said property and effects," are to be determined at the death of the widow, and not as of the death of the testator. From an adverse ruling on this point, said defendants appeal, assigning error. Are those "who would have been" the testator's "heirs and distributees," had he died intestate, and who are designated as the ultimate takers of two-thirds of his property, to be ascertained and determined as of the date of his death, or at the time of the death of the life tenant? The answer is, At the death of the testator. Witty v. Witty,184 N.C. 375, 144 S.E. 482; Dixon v. Pender, 188 N.C. 792,125 S.E. 623; Baugham v. Trust Co., 181 N.C. 406, 107 S.E. 431.

Had the testator died without making a will, undoubtedly his heirs and distributees would have been determined as of the date of his death, for as said by Blackstone: "An heir is he upon whom the law casts an estate immediately on the death of the ancestor." II Blk., ch. 14; Welch v.Gibson, 193 N.C. 684, 138 S.E. 25; Yelverton v. Yelverton, 192 N.C. 614,135 S.E. 632. To hold otherwise would be to take from such words their ordinary and natural meaning and give to them an artificial or hypothetical significance. Jenkins v. Lambeth, 172 N.C. 466,90 S.E. 513; 69 C. J., 262; 23 R. C. L., 549. It is only when the testator uses such words in a different sense — which, of course, he may do — that they are given the artificial signification intended by him. Scales v. Barringer, 192 N.C. 94, 133 S.E. 410; Bowen v.Hackney, 136 N.C. 187, 48 S.E. 633.

Speaking to the general rule in Bullock v. Downes, 9 H. L. Cases, 1, Lord Campbell said: "Generally speaking, where there is a bequest to one for life, and after his decease to the testator's next of kin, the next of kin who are to take are the persons who answer that description at the death of the testator, and not those who answer that description at the death of the first taker. Gifts to a class, following a bequest of the same property of life, vest immediately upon the death of the testator. Nor does it make any difference that the person to whom such previous life interest was given is also a member of the class to take on his death."

In interpreting the present will, the court below applied the general rule, and in this we find no error.

Moreover, it appears that the parents and grandparents of the appealing defendants have heretofore received the very property in controversy in a division and settlement with the widow, on the assumption and belief that they were entitled to same as vested remaindermen. This settlement was approved by order of court, in a proceeding brought for the purpose, and it will not be disturbed, because in a limitation by way of remainder to a class, the law calls the roll of the class immediately upon the vesting of the estate, and those who can answer, take. Fulton v. Waddell, 191 N.C. 688,132 S.E. 669. At the call of the roll in the instant case, the brother, sister, and nephew of the testator answered. They alone took . So said the law in 1907. So says it now.

Affirmed.